You arrive to pick up the kids from your ex’s for your scheduled weekend, as stated in your custody order. No one is home. You call the other parent, but it goes straight to voicemail. The neighbor tells you that the kids and your ex left last night for Disneyland. You do not recall that you approved—or that your ex even requested—a change in this week’s schedule. Worse yet, this situation has happened before.
Willfully disobeying the terms of a legally binding document (such as a divorce court order) can constitute Contempt of Court. This serious offense could incur court and criminal penalties, fines, payments to the other party’s attorney fees, compensatory custody time, or even a jail sentence.
Failure to make spousal and child support payments or distribute assets as per the court order can also “hold you in contempt.” Unfortunately, the burden of proof lies on the accuser. To prove contempt, one party must be able to prove that the other:
1. Knew of the order
2. Had the means to abide by the order and chose not to
3. Lacked a justifiable excuse for violating the order
Therefore, what should you do when your ex is violating a court order?
Before accusing your ex of violating a court order, review the order in its entirety. Know EXACTLY what it says, and what you agreed to when you signed it. Identify the terms of the agreement that your spouse has disobeyed. Document the actions of your ex as they pertain to those terms. Your goal is to prove that your ex knew of the order, chose not to abide by it, and lacked a solid reason for violating the terms.
Try to personally settle the issue with your ex
If you can directly settle the issue with your ex, it is preferable to filing a motion in court. Send a firm yet respectful email that reminds them of the order’s existence, the terms of the order, and how and when it was violated. For added support, you may want to attach a photocopy of the corresponding page from the order.
If a short email does not resolve the situation per the terms of your agreement, show good faith by giving them one more chance to rectify the situation. Then send a second letter that restates your position and includes a deadline for action. (For example, “I will contact the police if you do not return the children by tonight.” Or, “I will file a court motion on Friday if you do not pay support by Thursday.”)
If your situation does make it to court, the judge will see the evidence: Despite your best efforts to resolve the issue, the other party still refused to abide by it.
File a motion
Usually, you need to file a motion in the same court that filed the order you want to enforce. You may represent yourself or hire an experienced attorney to file and advise you along the way. If you plan to represent yourself, you will want to contact the Clerk of the Court to learn the proper procedure for filing a motion in that court, which involves filling out paperwork.
Once you have filed a motion, the court will assign you a hearing date. Hearings are scheduled based on the court’s case load. Whether you hire an attorney or not, an official notification of pending charges and the hearing date must be communicated to the violator. Plan to show up to the hearing well-groomed and rested. The judge will hear all the evidence presented and make a final decision about enforcing or resolving the issue at hand.