Ask a Divorce Attorney – Post Judgment Enforcement/Modification
Enforcement of Child Custody Orders
Orders regarding custody and visitation of children are meant to be followed and fashioned by the court in a way that makes following them most advantageous to the children–not necessarily what is most convenient or desirable for the parents. As a result, many parents often find themselves in situations wherein the other parent refuses to comply with the child custody orders.
It is a common misconception that a non-custodial parent is required by law to exercise court ordered visitation. In fact, court ordered visitation is a right, but not a legal requirement. As such, a custodial parent cannot force a non-custodial parent to exercise his or her parenting time. The remedy in a situation like this would be for the custodial parent to file a motion to modify visitation to conform to what is actually exercised by the non-custodial parent and then to potentially request an increase in child support due to the non-custodial parent’s lack of involvement.
When the inverse is true, and the custodial parent is frustrating or not allowing the court ordered visits with the non-custodial parent to proceed, then he or she is violating a court order. The remedy in a situation like this may be to file a motion for the court to change custody to the non-custodial parent or to file a contempt action against the custodial parent for willful violation of court orders.
Modification of Child Custody Orders
Once a permanent order for child custody and visitation is made by a family court judge, that order is generally only modifiable in the future if there has been a significant change in circumstances since the order was made. A change in circumstances would be anything that could potentially have an effect on the current co-parenting plan. It could be that the non-custodial parent’s work schedule has changed to allow for more frequent visits. It could be that the child has graduated from grade school to high-school and his or her level of maturity or connection with one parent or the other has changed. There are many facts and situations that may arise that may or may not be considered by the court to constitute a material and significant change in circumstances. Generally, so long as it has been a significant period of time since the last orders were made, the court will allow for the motion to modify to proceed. The focus is always going to be to ensure that any orders made are in the best interest of the children.