Meet Chris. Chris is a 45-year-old dad with two children. His first child, Josh, is 15, and his second child, Beth, is 11. Chris and his ex-wife, Alice, have been divorced for three years now. When Chris and Alice divorced, they agreed to exercise equal parenting time and joint legal decision-making. The children would spend one week with each parent and continue to alternate throughout the year. Both parents agreed to be involved in decisions regarding the children and co-parent with each other.
Chris and Alice were successful in co-parenting the first year after the divorce. They also did not have any problems with parenting time or exchanging the children. However, Alice got remarried shortly after the divorce. This started causing problems between Chris and Alice. Alice’s new husband became highly involved with the children. He also was very wealthy and purchased the children anything they wanted. The children started acting spoiled, especially Josh.
When Chris would pick up the children from Alice’s home, Josh would have an attitude. Josh would say he didn’t want to spend time with Chris and Chris didn’t buy him anything he wanted. Unfortunately, Alice did not stop this behavior. In fact, it appeared as though she encouraged it. Beth was not as reluctant to spend time with Chris, but would often follow what Josh was doing or Alice was telling her.
Within three years after the divorce, Chris is only seeing his children a few times a month for a few hours. He has begged Alice to give him his parenting time. However, Alice has indicated that the children do not want to go and she will not make them go. Chris doesn’t want to force his children to do something they don’t want to do, but he also feels as though Alice is heavily influencing them. What can he do?
Chris needs to enforce his parenting time. Unfortunately, Chris has waited so long; it is going to be more difficult for him. Chris should have taken action immediately. When a parent is not complying with a custody order, you have to let the court know. If you don’t, it could backfire on you, as is happening to Chris’ relationship with his children. That’s easier said than done and hindsight is 20-20.
The first step in enforcing a custody order is to inform the other party that they are not complying. The reason you should do this is because it sometimes works. It can also save you thousands of dollars if you are able to avoid going to court. Make sure you notify the other party in writing. This way you have a written record of trying to work it out with them. This will make you appear more reasonable.
In the written notice, make sure to quote the section of the parenting plan or legal decision-making order that the person is not complying with. After that, include specific examples of when and how that person is not complying. Lastly, close the letter with the demand that if he/she does not comply with the current court order, you will be filing a Petition to Enforce with the court.
So what happens if the other parent still does not comply after you send them the demand letter? At this point, it is important to get the courts involved in order to enforce your current plan. If you do not do this, it may be difficult to enforce in the future. So what steps do you need to take to move forward?
Filing a Petition to Enforce
1. You must draft a Petition to Enforce Parenting Time and/or Legal Decision-Making. You can obtain a court form for a Petition to Enforce from the Maricopa County Superior Court House or website. You can also have a lawyer help draft the Petition to Enforce for you. Rule 91 of the Arizona Rules of Family Law Procedure requires that you file the Petition to Enforce to start an action with the court.
2. In your Petition to Enforce, you must include the current order that you are wishing to enforce, as well as where the current order was entered. You must also include how and when the other party has not complied with the current order, as well as the relief you are seeking from the court. Your relief may include contempt, attorney’s fees and costs, as well as enforcement of the current order.
3. In addition to the Petition to Enforce, you must also bring an Order to Appear. This document can also be found on the Maricopa County Superior Court website or through a lawyer. The court will mainly complete this document. It is for the court to schedule a date to appear in front of the judge.
4. After you have completed the Petition to Enforce and an Order to Appear, you need to sign the Petition to Enforce and have it notarized. You will then make two copies of the original Petition and Order to Appear.
5. Take the copies to the courthouse and file them with the Clerk. You will have to pay a filing fee at the time of filing. If you do not have the funds to pay the filing fee, ask the Clerk for a fee waiver or deferral. You may have to provide some income information.
6. The Clerk will give you your two copies back of both the Petition and Order to Appear with stamps on the documents. You do not need to serve the documents on to the other party yet. Once the court schedules a date for your initial hearing, you will receive the completed order to appear either by email or in the US Mail. Once you have the Order to Appear that includes the hearing date, you can serve that document and the Petition on to the other party.
7. Once the party has been served, they have twenty days to respond to your Petition. Additionally, they are required to appear at the hearing set by the court. If they do not appear, they may be held in contempt and/or the court may award you everything you want immediately.
What Happens Now?
The most difficult process of enforcing a current order is proving to the court that the other party is not complying. Many people think that if the other party violates the parenting plan or joint legal decision-making order just once, they can file for an enforcement action. This is not the case. The courts are very reluctant to hold someone in contempt or enforce an order when there is little to enforce. There should be a substantial pattern of non-compliance before the court will take serious action.
For example, in Chris’ case above, he may have a difficult time enforcing the current order or having Alice held in contempt. Alice’s behavior of withholding the children has been going on for almost two years. Chris never took action. Instead, he let the children stay with Alice, despite being upset. Chris should have done something immediately. Chris could have called the police the first time that Alice refused to give the children to him. Likely, if Chris showed the police the court order, Alice would have been required to return the children to him. Additionally, after a few months of withholding the children and failing to include Chris in any decisions regarding the children, Chris should have filed a Petition to Enforce. If Chris was allowing Alice to not comply, then there is nothing to enforce at this point.
If you are able to show the court that the other party has been consistently not following the parenting plan or making decisions without you over a period of time, the court will likely hold the other party in contempt, as well as award you attorney’s fees for their unreasonableness.
Examples of Non-Compliance
So what would constitute as consistently not following the order? Here are some examples of what would likely need to be enforced:
- It has been one month and mom refuses to allow you to see the children during your parenting time. She will not answer the door when you show up to pick up the children. She also refuses to answer any of your phone calls or texts. You have had to call the police on her multiple times in order to hand over the children. However, she is still not complying.
- You and dad have joint legal decision-making, however, dad has been making unilateral decision. Dad got your daughter’s ears pierced without discussing with you first. He also made 15 doctors appointments in the last two months for your son that he never told you about. He also switched the children’s school without asking you first.
Keep in mind that there are a number of types of issues relating to parenting time and legal decision-making that could arise and need to be enforced. These are just two examples of types that commonly occur.
If you do not return your children to the other parent during his or her parenting time, there may be serious consequences. These consequences could range from contempt to possible jail time. It is very important that you comply with your current orders. If you feel that the child is not safe returning with the other parent, then you should immediately file for an emergency order. Do not risk getting in trouble.
For example, a warrant could be issued for the other parent to take immediate physical custody of the child. That parent would have to prove that the child is in danger, may be injured, or possibly removed from the state. If you are the parent seeking the warrant, you must be sure that the child will be in immediate harm. If you do not have enough sufficient evidence to support this claim, a warrant will not be issued. The warrant will also authorize authorities to immediately remove the child. Some examples of danger could include a parent’s drug or alcohol abuse, child abuse, and a foreign parent threatening to take the minor child out of the country.
The other serious consequence of withholding a child is custodial interference. Custodial interference is defined in A.R.S. 13-1302. It is a criminal charge. If a parent is withholding your child, you can request that authorities press charges against him or her for custodial interference. The person can be charged with custodial interference if they take and keep lawful custody from another person, withhold the child and deny access, withholds the child from a person whom they have joint legal custody with, or fails to return the child from out of state. The only exception is if there is domestic violence, immediate danger to the child, and the parent has filed for an order of protection or petition. The punishment can be up to a class 6 felony.
Q & A’s
What if the other parent is only not complying with parenting time? Do I still have to file a Petition to Enforce Parenting Time and Legal Decision-Making?
Absolutely not. You can file a Petition to Enforce Parenting Time, a Petition to Enforce Legal Decision-Making, or a Petition to Enforce Parenting Time and Legal Decision-Making.
How soon will I get a court date?
It depends. If the judge assigned to your case has an open calendar, you could get in within a few weeks. However, it could take a little longer if the court is busy.
Will I get to have an evidentiary hearing right away?
Probably not. Most of the time the judges like to bring you in for a quick 15 minute return hearing to see what the issues are and what needs to happen moving forward. You’ll likely get an evidentiary hearing for a future date scheduled at that time.
Will the judge find the other parent in contempt of court if I file a Petition to Enforce?
This depends on how good of a case you have. You must have evidence to support that the other parent is not complying. Just you telling the judge will likely not be sufficient. It is always good to have a written record, whether it is by emails, text messages, or police reports.
Is there a timeline on how often I can file a Petition to Enforce?
No. You can file a Petition to Enforce at any time the other parent is not complying. However, be careful of not over filing Petitions with the court. If the court continues to deny your Petition to Enforce, it is not a good idea to keep filing until you have the sufficient evidence to back up your allegation
How should I build a holiday parenting time schedule?
The holidays can be chaotic under the best of circumstances, however, when you are juggling the additional hurdle of children visiting with non-custodial parents, the holidays can become unbearable. For the sake of your sanity and the benefit of your children, remember these tips to ensure smooth transitions and maximum enjoyment.
1. Stay flexible. Even when you have a written plan, things change and unanticipated situations arise. The pre-planned pick up and drop off times may not work or it may be better to trade on a particular year depending on vacations or family in town. Staying flexible and cooperative can maximize your time with your child and ensure future goodwill.
2. Communicate. Parenting children is challenging when parents live together. It is especially challenging when they don’t get along, much less live together. Frequent, honest communication prevents misunderstandings and can make the holidays easier on everyone. Be prepared to make some concessions and ask for concessions in return.
3. Focus on your child. Instead of focusing on the dynamics between you and your ex or how s/he “always gets his/her way” Think about how you can make the holidays as fun and fulfilling as possible for your child. Most children want and need a relationship with both parents and both sides of extended family. Think about ways you can support that relationship while persevering and furthering your own.
Finally, when originally coming up with a plan or in times of serious or ongoing disagreement, it’s a good idea to consult an attorney. Other times to see an attorney include: If there is an in-balance of power within the relationship, if one person is withholding parenting time or alienating the other parent. Family law attorneys have had the advantage of seeing the good, the bad, and the ugly. Many times we can anticipate problems or make suggestions to solve problems and deescalate conflicts.