When an order is violated, the solution is to file a motion for enforcement. With that motion, several remedies may be requested. Some of the more commonly requested forms of relief include:
- Contempt of Court
- Posting a bond to secure performance in the future
- Award of attorney fees
There is often some confusion between visitation and custody, and the enforcement of each can be quite different. Visitation (or possession or periods of access) is the time that each parent is able to spend time with the children, according to the order, absent an agreement between the parties. Custody applies to the parental rights that each parent has. Often they are the same rights that married couples have without any order at all – the right to make educational, medical or psychological decisions, the right to take the children to the emergency room, the right to consent to marriage or enlistment in the armed forces while a child is under the age of eighteen, etc.
Other custody rights might include a first right of refusal, where each parent is to let the other parent watch the children if a babysitter is needed, an injunction against drinking alcohol while in possession of the children, or from having overnight adults of the opposite sex spend the night when the children are there.
If a parent is to notify the other parent of these decisions before they are made, if the parents are to agree on some of these decisions in advance, or if there are injunctions which should be respected, the violation of those obligations may lead to an enforcement of the order.
The sanction with the sharpest teeth is, of course, contempt of court, which may include jail time. If a violation of an order leads to spending time behind bars, a parent may be more likely to follow the law of the order.
Since contempt carries the possibility of jail, it is considered a quasi-criminal action and requires the same technical pleading and specificity that an indictment or even a speeding ticket might have. Otherwise, the defendant can say that they were not aware of what action or inaction was required by the statute and may get off on that technicality.
If the order is specific, such that contempt is a viable remedy to seek, then the pleading itself must be very specific, like an indictment. If it isn’t, then the respondent (or “defendant” in criminal law) will not be adequately informed of the charges against him or her so that they can properly prepare a defense.
With a very specific order and an equally specific and technically correct motion for enforcement, one thing is left – the trial. Just as in a criminal case, the evidence must be presented to support the pleadings and give the court the legal ability to hold the person in contempt.
There are some items in custody orders that are simply impossible to write with enough specificity to later hold the parties in contempt. For instance, it is unlikely, though not impossible, that a person may be held in contempt for violating an injunction against disparaging the other parent to the children. To do so, each disallowed phrase and word would need to be included.
That does not mean that these less specific parts of the order may not be enforced. Indeed, they can. Fines, the posting of bonds, and the awarding of attorney fees are all available remedies. The court can also clarify parts of the order if they are later found to not carry that level of specificity required for a contempt finding.
The violation of these orders may also be used as a basis for the modification of orders. A motion for enforcement may be used in conjunction with a motion to modify to get to that result.
A motion for enforcement is one of the most technically precise documents commonly filed in the family law realm. It takes an attorney with the experience and expertise to do it right the first time. If it is done wrong, like double jeopardy in criminal law, there might not be a second chance. Contact the expert attorneys at Orsinger, Nelson, Downing & Anderson if you have questions or need guidance regarding a motion for enforcement.