Can I violate my Virginia custody and visitation order?

Posted on Mar 18, 2022 by Katie Carter


We talked Wednesday in a fair amount of detail about what happens when your co-parent violates a coparenting agreement or order entered by a court. Orders entered by the court are enforceable, which is why we go to all the trouble to make sure that our agreements are processed this way and that, when we go to court, an order is entered afterwards that specifically memorializes everything that happened there.

In many cases, that’s the end of that. The parties read and understand their agreement, and ultimately follow it – or, at least, mostly follow it. They may make subsequent agreements between themselves and modify a bit as they go on. Or maybe they go back to court, because there has been a material change in circumstances and the best interests of the child warrant a change. But, for the most part, they follow the order or agreement, and they find a sort of balance as coparents.

In other cases, though, it’s not that simple. In other cases, one (and, sometimes, both) coparents seems determined to thwart the order. It may be in a million small ways, or in several big ways – but, ultimately, violating an order is violating an order. You’re really not allowed.

But what if YOU violate the order? What if you need to?

Well, technically, my advice is not to violate the order – though I understand that, sometimes, circumstances aren’t perfect, and that as a mom you have to act quickly or off the cuff to make sure that your kids are protected.

In general, though, it’s better to act offensively than defensively, if you know what I mean. If, for example, you’re having an issue about school enrollment, it’s probably going to be better to take the issue to court and let a judge decide than to take it upon yourself to enroll the child where you think that he or she should go, especially if you have joint legal custody.

If relocation is an issue, you might think that you’re better off asking for forgiveness than permission. Maybe you’re right. But it’s a huge gamble, and one that I generally don’t recommend that my clients take.

Maybe it’s a vaccination issue – we’re seeing a lot of those lately. It’s sort of one of those ‘you can’t un-ring the bell’ situations, so if you get your child vaccinated over your coparent’s objection and he brings an action in court – well, your child is still vaccinated. So, maybe that’s a win? But, depending on your reasoning, and his reasoning, the court could find against you.

At the end of the day, it all comes down to exactly WHY you’re violating the order and HOW you’re violating the order. It’s incredibly case-specific. It’s down to the best interests of the child, and how well you communicate and show respect for your other coparent. The judges like to see both parents involved with the children, so taking things upon yourself is going to throw up a little red flag that you’re maybe not the best, most cooperative coparent.

What if the violation is to protect my child’s safety?

Right. That’s always the question, right? Can you, say, deny parenting time if your coparent shows up drunk or high – or you suspect that he is? Can you refuse to send your child to a particular activity or event if you feel like it’s not safe? If the risk of COVID-19 exposure is too high? If it’s otherwise unsuitable?

Maybe. Again, it’s going to be highly fact specific. I’d never recommend that you send a child with a coparent who is obviously drunk or high. You could, potentially, even record that exchange – though definitely NOT with the child present, NEVER with the child present – so that you have some evidence.
You could request rapid covid tests before handing the child over – though, if the court order doesn’t require that he submit to one, he would be within his rights to refuse.

There are a million different issues that could translate into a reason why you might not want to send your child for his parenting time, and it would be impossible for me to imagine all of them here. I’m only going over some common ones, or ones that I’ve seen come up recently. Ultimately, you’ll have to make a decision in the moment, and then live with the consequences.

But what are the consequences if I violate a court order?

Like I said Wednesday, it’s really going to depend on the extent to which you violated that order. It’s not like a single violation – withholding visitation one time, for example – is going to mean that you suddenly completely lose custody.

In most cases, it would take repeated, serious violations to risk losing custody. If you have a reasonable argument, and especially if you have a real, legitimate, document-able safety concern, you probably won’t get more than a slap on the wrist.

What I see most often for people who violate custody agreements or court orders is that they have to pay the other party’s attorney’s fees.

But it’s also possible that your child’s father could use the opportunity to propose a change – to custody, visitation, or child support – or to the specific wording of your agreement that disallows these modifications in the future. Maybe you wind up with more specific language designed to target this exact situation, or maybe parenting time does shift a bit. He could get more time, maybe, without you completely losing custody.

You, too, could file petitions to modify custody and visitation, or even petitions to have your specific issue determined, like if you want to vaccinate a child and he’s unwilling (or vice versa) or there’s an issue with school enrollment. Or something else entirely.

When you raise children, a million different issues can come up. Parents EVERYWHERE have these issues; married or not. So, you’re not alone. You just have the extra resources of the court to help hold you both accountable, which is both a good thing and a challenging thing.

For more information, or to schedule an appointment to discuss your existing court order, give our office a call at 757-425-5200.