My Ex Isn’t Abiding By The Agreement … What Do I Do?

Mom and dad separated two years ago. They have a 5-year-old son, Billy. They have been making visitation transfers on Fridays at 7:00 p.m., with the parent who has Billy dropping him off at the other parent’s residence.

One Friday, dad drops off Billy at 8:00 p.m. Mom comments on the tardiness but she lets it slide. On the next transfer date, once again dad drops off Billy at 8:00 p.m. Mom confronts dad, but they cannot resolve the problem.   What can be done?

Is there actually an agreement?

The first item for mom to determine is the basis for her claim that dad is late. Is there a court Order stating that the drop-offs are at 7:00 p.m.? Do mom and dad have a parenting plan drafted by their attorneys or a mediator that covers this issue? Is this just a course of conduct that has happened since the separation?

If there is a court order or parenting plan, the mom must read it carefully to determine what it expressly states. It is easy to fall into a pattern and presume that the Order supports the pattern. For example, the Order may require transfers to occur on Fridays, but it may not provide a time.

If there is an Order or written agreement supporting the 7:00 p.m. drop-off time, the document must be read carefully to determine what steps must be taken to enforce it. In many cases, notice will be required before requesting relief from the court. For example, mom may be required to send dad a letter stating that the Order requires a 7:00 p.m. transfer and that on such and such dates the transfers were at 8:00 p.m. Another common requirement is for the parties to take their dispute to a mediator before proceeding to court. In higher conflict situations, the parties may be required to consult with a parenting coordinator.

On the other hand, if there is no Order or written agreement, then the arrangement will not be enforceable. Nevertheless, if the course of conduct has been in place since the separation two years ago, and if it serves Billy’s best interests, the mom could request that the court include this requirement in an Order.   Even if mom and dad already have a custody Order (but it doesn’t cover visitation transfers), the Order can be modified if there has been a material change of circumstances and it is in the best interests of the child to make the modification.

What’s next?

Now that mom knows the status of any Order or agreement, she needs to be prepared before going any further. It is important to document all relevant events. It is always a good idea to maintain a calendar that keeps track of the child's access schedule and other important events. Little things may happen that are insufficient individually to go forward with a court action, but these problems may add up over time and be worth pursuing collectively.

Mom may be frustrated when her ex drops off Billy an hour late, and it will seem like something she won’t forget, but chances are she will not remember the important details, such as dates and times, three months later. Any emails or text messages should be saved and printed so that they can be used later on to show what happened.   Any written letter, such as notice that may be required by a parenting plan, needs to include the date and be signed by the writer. Also, do not forget to make a copy of the letter! It may be required for a court filing.

What are the alternatives to a court action?

Before deciding to proceed with a court case, mom needs to step back and think about what is in Billy’s best interests. It is easy for parents to think of visitation as being “my time,” but, in actuality, the primary purpose of a child access schedule is to benefit the child. The example used in this article implies that dad is in the wrong. That may not be the case. Perhaps, dad’s work schedule changed, making it impossible to drop off Billy at 7:00 p.m. Maybe Billy’s karate lessons, which were primarily mom’s idea, finish at 7:30 p.m. on Fridays.

Mom should consider how the one-hour difference affects Billy. Does he enjoy karate? Does the late arrival at her home make it harder for him to settle down and get ready for bed?

Perhaps there are alternatives that would be preferable to a court-ordered solution. Can the transfers be changed to 8:00 p.m. for both parents? Would it go more smoothly if the parent who is to begin visitation picks up Billy at the other parent’s residence? If dad simply runs late because he is disorganized, and not out of malicious intent, this may be a simple fix.

Billy’s parents know the most about his best interests. If the parents cannot work it out themselves, a mediator may help them focus on Billy’s best interests. The parties can also try family counseling or a parenting coordinator. What is clear though, is that the person with the ultimate authority — a judge — is the person who will spend the least amount of time with the parents and, accordingly, any decision will be based on an incomplete picture of Billy’s best interests. A judge’s ruling may create an ironic agreement between the parents, i.e., that the decision is not best for Billy. Nevertheless, it will be final.

I Tried Everything, But It Is Time To Go To Court…

If there is a written agreement, mom can file a motion with the court for specific performance of the agreement. If there is a court Order, mom can file a petition for contempt that will also ask the court to enforce the agreement.

Often the parties have a written agreement that is incorporated, but not merged, into a court Order. In this situation, the parent filing the action may benefit by suing on the agreement in addition to asking the court to enforce compliance through its contempt powers. One reason to do this is that the statute of limitations on a written agreement or contract may be up to 12 years, while a court’s contempt powers typically only go back 3 years.

With our example, if mom lost access with Billy due to dad’s lack of punctuality, the court could order make-up time. However, if the 7:00 p.m. transfer is not working, or if dad’s reason for failing to comply is excusable, the court could deny the contempt and change the transfers to another time. If mom’s case is meritorious, the court could order dad to contribute to mom’s attorney’s fees. Likewise, if mom’s case lacks merit, dad may ask the court to order mom to contribute to his attorney’s fees.

Conclusion

Agreements about children may need to be changed eventually. The agreement may have been created when the child was very young. It may not make sense to continue it as written. Nevertheless, with any agreement, particularly, a court order, it is incumbent on the parent who wants to make the change to request the modification or that parent could find themselves on the wrong end of a contempt petition. If your ex is not following an agreement, or if the agreement is no longer in the child’s best interests, an experienced attorney can provide invaluable guidance. You may contact me through the form on this page or via Facebook or Twitter.