Steps to Consider when the Other Parent Breaches a Custody Agreement

The Purpose of Custody Agreements

A child custody agreement is a legal contract between parents that outlines how they will share in the rights of their child. The agreement establishes the parenting plan, and may include matters such as physical and legal custody, who can make legal decisions in regards to the child, and how situations such as relocation, school choices and religion will be resolved. A custody agreement contains provisions agreed to by both parents, and is enforceable in a court of law . A parent cannot unilaterally make decisions that affect the welfare of the child after the agreement has been established.
In the eyes of the court, provisions contained within a custody agreement are presumed to be in the best interest of the child. When one parent breaks a shared agreement, the other parent can petition the court to enforce those provisions. A failure to comply with a written and signed agreement is contempt of court, and may result in sanctions against the offending parent.

Determining a Violation of the Custody Agreement

When an individual does not follow the custody agreement with the other parent of their child or children, it is considered a custody agreement breach. In some cases, these breaches may be inadvertent or due to unforeseen life changes. In other situations, the other parent may be willfully trying to undermine your authority and the carefully negotiated agreement.
Before taking steps to get back on track with the custody agreement, you need to evaluate whether a breach has occurred. For example, if your ex-spouse is an hour late to a visitation, is there a reason for this tardiness? If you consistently find that your ex-spouse is late to their visitation with the kids, then you may have a valid argument that a violation has occurred. You should be aware, however, that the same rules apply to you. If you are consistently late to hand over the children, even when you say that it’s due to work or bad traffic, the court may look at this as a custody agreement violation on your part.
Some common examples of custody agreement violations include:
When a custody agreement is violated, it is important to take steps to correct the behavior. The degree of aggression you should use will depend on whether the violation was intentional or whether it was simply a mistake that will not happen again.

Gathering Evidence of the Custody Agreement Violation

If the other parent has violated the court order, the very first thing you should do is follow the lead of your attorney when they say it is time to start writing in a calendar again. Keeping track of dates and times of the violation is critical. It is also a good idea to record in writing what took place in as much detail as to what happened. At this time, you also want to start keeping a log of what you said to the other parent about the problem and what the other parent said back. If the issue involved communication between the two of you, keep the communication if you can; this includes emails and text messages. You want to keep your calendar, journal, and records of communication with the other party in a secure area of your home where other persons cannot tamper with them.

Seeking a Solution through Communication

It’s often a difficult task attempting to broach issues in a parenting relationship with the other parent if you are in disagreement, but it’s a necessary and very often the best step to take. In cases where a parenting time schedule or custody order is violated or needs to be modified, simply seeking a remedy through the judicial system is not necessarily the first step to take before seeking contractual remedies through communication with the other parent. For example, if the other parent has repeatedly failed to return your child at the age appropriate times to your home on the scheduled weekends, and fees have not been paid for those extra hours, a breach of contract may be a possibility. Although a communication should initially be made and a full discussion should be had with the other parent to discuss how to best resolve the issue, one must be informed that the courts prefer to view custody and parenting time issues as injunctions and agreements made in the best interest of the child. It is likely that the court would impose equitable considerations and simply order the exchange of the child at the proper time, the payment of fees on the past due amounts, and presumably the payment of counsel fees if any are incurred in a breach of contract action against a parent. Approaching this in a constructive manner generally gets results. A letter sent to the other parent explaining your position may produce results, but be sure that you do so by confirming the times involved, listing the dates, the supervision involved, and give the other parent an opportunity to re-schedule any missed time together. Every step taken to make the situation right should be taken. If the other parent refuses to comply, then the enforcement proceedings can be used. A letter seeking to prevent litigation is generally favored by the courts if possible. Major factors that lead you to exercise that option may involve when and under what circumstances you attempted to communicate with the other parent. If the other parent is unresponsive, this may justify a proceeding to enforce the contract.

Considering Involvement of Attorneys

Involving legal professionals may be the next step if this breach is serious. You may have important dates that need to be changed, as the appointment was for a date you made plans, or took time off work for, and can’t easily change those plans. If the other parent has violated the custody agreement in a serious manner, such as neglecting the child, you will want to consult with a family law attorney . For example, if the other parent has not provided clothing and a lunch for the child when mandated by the custody agreement, and the child is now in the custody of the non-custodial parent, you will want a lawyer’s help to ensure that this doesn’t happen again. For consultation with a lawyer to be helpful, you will need to have proof a violation occurred, such as a text message or email stating that the other parent did not provide the lunch they agreed to, or a picture of what happened. If total lack of care for your child or children is a concern, an attorney can help you due to their knowledge of law and experience in court.

Evaluating a Motion for Enforcement

If a parent wishes to enforce the visitation terms of the custody agreement, they can file a motion in court to do so, knowns as a motion for enforcement or motion for contempt. In situations where an order is not being followed, enforcement proceedings may be the only way to have visitation restored. Filing the motion for enforcement is one of the most important steps to take and can be completed by filing a form with the local court clerk, along with the required filing fee (in Texas, there is a $280 filing fee for filing a motion for enforcement). Once the motion for enforcement is filed, a hearing time will be set with the judge for the parties to appear and present their case. The individual who files the motion is known as the movant and the parent who has violated the order is known as the respondent. It will be the responsibility of the movant to show that a violation of the order occurred. Respondent will be able to present reasons for any failure to comply requests for enforcement of the visitation order.

Altering the Custody Agreement

There are a number of circumstances that may necessitate a modification to the custody arrangement. First, suppose the violation of the custody order is so severe and so harmful to the child that the judge believes that the offending parent should not have custody at all. In that case, that parent should immediately file a petition with the court to modify the custody order, asking for an immediate suspension of custody until a full hearing is held to determine how best to protect the child from harm. The opposite side of that coin is the circumstance in which the violation of the order does not pose any immediate danger or harm for the child, but nonetheless should not be permitted to continue. For example, suppose a violation of the order occurs when the non-custodial parent keeps the child a little longer than the stated time in the order. If the violation has occurred only rarely and is documented on a calendar, it is not necessary to contact law enforcement or go back to court immediately. This type of violation shows up as a pattern when it occurs more frequently and continues to escalate. In most cases, it may be worth first contacting the other parent to let him or her know that the violation occurred and that you want to talk about it. But in that conversation, make sure you generate a date on which to talk about it again as well as a preferred course of action to remedy the situation. If the other parent refuses to participate, then you may be left with no choice but to file a petition with the court. If that occurs, you may file a motion to modify custody, requesting a change in the parenting plan, parenting schedule or parenting time, and seek the court’s assistance to ensure that the violations stop. In the end, once an order is entered by the court, it can only be changed by filing a motion with the court to request a modification. All relevant information must be provided to the court at the time of the motion so that the judge can make an informed decision about what is in the child’s best interests.

Seeking the Best for Child

If a parent violates a custody agreement, the focus of the solution should be on your child’s best interests. Whether the violations are related to physical safety concerns or emotional ones, it can be difficult to regain your footing. You can take a series of steps to support your child through this process, however.
For starters, you should ask your child questions to gauge how they feel in regards to the current situation. Engage your child in a conversation about their recent experiences and reassure them that you are going to make sure the problem is fixed. If they have specifically been unafraid or otherwise irritated with their treatment by the other parent, ask them if they are okay with the way things are. Gently promote your position on the topic, as well as how you expect the situation to change.
Your children also need emotional stability during a custody battle . You should avoid the temptation to discuss the issue with your children; even if you just wish to vent, they should not be your sounding board. Likewise, you should not attempt to use them to get a glimpse of the other parent’s activities during visitation. This is inappropriate and may cause them to feel caught in the middle.
Of course, you may also need to consider your child’s safety. If you believe they are in immediate danger, you should seek action from law enforcement or emergency services immediately. An order of protection may also be useful in ensuring their safety and preventing further mishaps.
Finally, it may be wise to involve a professional. A therapist can tell you whether a custody violation has had an impact on your kids, as well as assist them in processing any trauma they may have experienced.