Violations of a child custody order or a visitation agreement can be serious and sometimes frightening because they might involve actions that pose a danger to the well-being of a child. If you feel that your child is involved in such a violation, you have several options both under civil and criminal law. Regardless of whether the remedy is sought under civil or criminal law, the other party is still entitled to notice and a proper hearing.
Civil Remedies
Child
Civil remedies usually involve some form of monetary reimbursement or court order decreeing that the other spouse do something or refrain from doing something. Unlike criminal remedies, civil remedies are aimed at alleviating the wrongdoings rather than punishing the offending person. Some civil remedies for violations of a child custody order are:
- Contempt of court: The court may hold the violating party in contempt of court if there has been a previous court order involved. Contempt of court typically involves a fine for the violating party, as well as further orders and instructions, such as returning the child to the other parent.
- Injunctions and Restraining Orders: These are court orders which require the other party to take certain courses of action or to refrain from certain acts. These can include orders to stay a certain distance from a child, or orders not to contact the child. The party seeking an injunction or restraining order must usually be able to prove that other remedies (such as money damages) are insufficient to correct the situation.
- Monetary damages: In certain cases, one parent may be able to obtain money damages if the violation has resulted in ascertainable (provable) losses to the parent or child.
- Modification of the child custody/support/visitation order: Sometimes the offending spouse may be in violation simply because the child custody or visitation agreement has no longer become practical. For example, this may be due to a change in employment or a relocation to a different area. In such cases modifying the agreement can be a peaceable way to avoid further conflicts.
Criminal Remedies
In serious cases, the court may opt to enforce criminal sanctions in attempts to enforce a child custody order. Unlike civil remedies, these are meant to punish the offending spouse as well as deter future violations of such agreements. They are typically reserved for more egregious instances such as those involving kidnapping or repeated violations occurring over an extended period of time.
- Criminal liability: If there are criminal charges involved such as kidnapping or false imprisonment, then a criminal suit may be initiated against the other party. A lawyer will be able to determine whether criminal charges lie and whether a criminal suit will likely be successful
- Punitive Modifications of Custody Order: The judge may choose to modify the custody or visitation order, as in a civil remedy. However, under a criminal, punitive modification, the changes will be made in order to reflect a punitive intent to enforce the decree, such as reducing visitation time or eliminating certain rights altogether.
- Posting of a bond: A bond is a certain amount of monetary payment that is issued upon the violating party in order to compel them to comply with the agreement. If the person cannot afford to pay, a lien may be levied against their property such as a house or other valuable possessions.
- Contempt of court: This is similar to civil contempt of court, except that in criminal contempt of court, the violating party cannot avoid jail time by paying a fee. Usually reserved for repeated violations of custody agreements or to enforce prior instances of contempt.
Remedies for Instances not Involving a Custody Order or Visitation Agreement
In some instances, clear violations of the law may occur even before a child custody arrangement has been reached. Although it is always best to be prompt in obtaining a child custody arrangement, in the event that a violation occurs, a parent may take the following action in the absence of an agreement:
Sue for interference: The aggrieved party can sometimes file a claim for interference if the violation has resulted in some form of loss to the parent (usually dealing with child support). This is rarely granted, but some states have statutes covering interference claims. Alternatively, the parent may sue for infliction of emotional distress if the other person has intended to cause such distress through their actions.
Criminal Charges: As discussed above, criminal charges may be pressed if the person in violation has committed some form of crime such as kidnapping. In such cases, the charges may be pressed even in the absence of a formal custody and visitation agreement.
Exercise of "Court Discretionary Powers": In child custody cases, courts have much discretion to make decisions that are in the best interest of the child. "Discretion" means that the court can exercise their own powers of judgment to make a ruling or decision, even if such ruling may be contrary to public policy or case law. For example, the court may make the decision to enforce restrictions on the violating parent or to require additional mandates aside from a regular custody order.
Do I need a Lawyer to Enforce the Custody and Visitation Order?
In some instances, hiring a lawyer is not the parent's most immediate concern, especially if the case involves an emergency such as a kidnapping or if the child cannot be located. In such emergencies, one should contact local police enforcement authorities in order to address the situation. However, after the situation has been remedied and the child's safety has been ensured, the person may wish to contact a lawyer to see what additional courses of action they have.
Even in less extreme cases, a parent would still be wise to contact a lawyer regarding violations of a child custody order. When contacting the lawyer, here are some points to consider in conclusion:
- Determine whether a formal child custody and visitation arrangement has been formally issued for the child and the parents. If none has been issued, it is probably best to obtain one diligently and without delay
- In the event of an actual violation of the custody order, understand the basic remedies available to you, and how they are different according to civil and criminal law settings
- If you cannot arrive at a suitable remedy, the court may still be able to assist you using their discretionary powers in order to issue a different decree
Ken LaMance is the Corporate Counsel for LegalMatch.com in South San Francisco, California. LegalMatch ( ) is fast, free, and confidential. LegalMatch is America's original attorney/client matching service and is not a referral service. When a consumer presents their issue to LegalMatch, our system matches the consumer's case to LegalMatch lawyers in their city or county based on the specifics of the consumer's case, lawyer's location, and area of legal practice. LegalMatch also offers a number of useful resources like an online law library, tips, law blog, and forums ( http://forums.legalmatch.com/ ) on nearly every topic.