Clients with children often ask what can a court do if the other parent violates an existing custody or parenting time order. The level of emotion and concern raised by such violations can be overwhelming and, oftentimes, victimized parents do not know what to do or where to turn. Just a few of the issues and questions may be:
- When the other parent deprives me of seeing my child despite the terms of the parenting time schedule that we agreed to, can he or she be forced to pay a fine?
- If the other parent does not allow me to speak with my child on a "reasonable and liberal" basis as set forth in our agreement, can I file a motion with the court and have the person thrown in jail?
- What about when the other parent does not tell the school or the doctor that I am supposed to have access to all of our child's records too, and am supposed to be notified of events, meetings, appointments, and the like?
- How about when the other parent decides to take our child to religious school, even though our agreement specifically says there will be no religious school?
- Can I force the other parent to pay my attorney fees for having to address these issues? What is the other parent going to say? Are the answers ever "black and white"?
While each situation poses its own unique set of facts and circumstances, where, as a result, the situation is almost never black and white or straightforward, there are options available when asking a court to address the situation. I address two of the more widely utilized options below.
1. Rule 1:10-3
Rule 1:10-3 of the New Jersey Rules of Court is the most commonly relied upon rule when one parent seeks the enforcement of a custody or parenting time order or agreement against the other parent. The application is generally referred to as a "motion in aid of litigant's rights" or a "motion to enforce litigant's rights" and it is designed to remedy the specific violation of the order or agreement at issue.
Importantly, any sanctions imposed pursuant to Rule 1:10-3 are supposed to be "coercive, not punitive" in nature. Thus, the mode of enforcement may even be of a monetary nature – perhaps a fine – or incarceration. The fine may be of any amount deemed appropriate by the family court judge to coerce the violating party to comply with the order or agreement moving forward. The offending party may also be required to pay for the moving party's counsel fees.
2. Rule 5:3-7
Rule 5:3-7 provides for potential "Additional Remedies" in the event of a custody and parenting time order/agreement violation. Specifically, subpart (a) provides a court with no less than ten (10) available options – which may be imposed in combination – in addition to those available under Rule 1:10-3:
- Compensatory time with the children.
- Economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent's failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent.
- Modification of transportation arrangements.
- Pick-up and return of the children in a public place.
- Counseling for the children or parents or any of them at the expense of the parent in violation of the order.
- Temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children.
- Participation by the parent in violation of the order in an approved community service program.
- Incarceration, with or without work release.
- Issuance of a warrant to be executed upon the further violation of the judgment or order.
- Any other appropriate equitable remedy.
Many factors will be at play when a court determines whether to implement any of the above-remedies, not the least of which is the opposition posed by the allegedly violating parent. For instance, one of the most commonly seen defenses to an allegation that a parent is not seeing a child for parenting time is that the child does not want to go. Well, then the question is, if that is even true – since shielding the child from the proceeding is ideal, especially for younger children – why doesn't the child want to go? Then the issue spiders out into a variety of other potential arguments, such as the child's age, disparagement of the moving parent to the child by the violating parent, alienation, scheduled activities and more.
Ultimately, victimized parents need not sit idly by and watch as the other parent does whatever he or she wants with respect to custody and parenting time despite an existing order or agreement. There are many options, and many available remedies, to help ensure that the violations stop before it is too late.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.