The whole reason we get custody orders – and agreements entered as orders – processed is so that they’re enforceable by the court in the event one (or both) parties wind up breaching the agreement. Actually, that’s what makes them powerful. It’s the fact that you’re not only memorializing what you’ve agreed to do, but you have the authority of the court behind you to make sure that both parties follow through on what they’ve promised.
In an ideal world, that would be enough. The parties would know what they’re supposed to do, and then just do it – no follow up necessary. But it’s not an ideal world and, in many cases, one of the parties breaches the agreement – sometimes routinely.
If you’re finding yourself in this predicament, just know you’re not alone. But you’re also not without recourse. Exactly what you’ll do depends, of course, on the severity of the breach, and even potentially the frequency of the breach.
He’s violating our agreement. Is it an emergency?
There aren’t a lot of custody-related concerns that qualify as emergencies, and most are related to the health and welfare of the child. If your partner has done something, in violation of your agreement (or even NOT in violation of your agreement) that puts the child’s health and safety at risk, it warrants an emergency motion.
In many cases, petitions related to school enrollment as also treated as emergencies, too, though it’s ultimately up to the judge’s discretion.
If you’re wondering whether your specific agreement violation qualifies as an emergency, it’s a good idea to talk to an attorney about it ASAP!
File a show cause petition.
The typical remedy for a breach of an agreement is to file a show cause petition. Basically, you allege some fault or misconduct against the other party, and you ask them to ‘show cause’ for why they’ve done it. At that point, you can ask for sanctions – attorney’s fees, for example. Depending on the infraction, you can ask for jail time, too, but it’s probably unlikely unless a lot of violations have occurred.
You should gather all the evidence and witnesses you have, and document, document, document. In a situation where there’s a lot of potential for ‘he said/she said’ you’ll want to have your ducks in a row as well as possible.
Consider the remedy you’re requesting.
WHY are you going to court over this? What do you want the court to do? Obviously, you want them to tell him that this violates the agreement, but you already know that he’s done that. Do you want to change the agreement, to implement some specific terms to make it harder on him to do this in the future? Do you think that this breach warrants a change in custody, visitation, and/or child support?
It’s usually not just a matter of a show cause, because the remedy there is just to say, “oh, yeah, the agreement is violated” and either assess a penalty (again, like attorney’s fees) or not. That may be satisfying enough for you, but it’s probably not why this bothers you. You’re probably thinking that, because of his refusal to follow the order, because he’s not coparenting effectively, or because of the choices he’s making, that some change needs to be made. Right? Definitely worth considering this, and then filing the appropriate petitions – usually, petitions to modify custody, visitation, and/or child support – to accomplish that as well.
Will I be able to get custody changed because of his violations of our current court order?
Maybe. There are no hard and fast rules here. Everything is highly case and fact specific, and I don’t know anywhere near enough about your case to know whether the violations here are severe enough to warrant a change in custody or a reduction in his parenting time.
If it’s severe enough, happens often enough, or is damaging enough, it’s possible that custody could be changed, or his parenting time diminished. It’s not a guarantee though; nothing is a guarantee!
It’s definitely worth talking to an attorney about this one on one if you have questions, because it’s nearly impossible to speak in generalities.
We don’t write custody agreements or go to court and get orders entered for our health, you know. We do it to ensure that both parties know what is involved in their case, and to give them specific rules for how the coparenting relationship needs to be navigated. Sure, it can be modified if there’s a material change in circumstances and if the best interests of the child require it, but at least an agreement or court order provides a certain standard level of care for the children involved in the case.
And, yes, we do enter into these things because it gives us some recourse when things go badly – that’s true, too. Both parties ultimately need to know that there are standards, and that the standards will be enforced. In some cases, there are chronic violations, but in many cases the existing custody order or agreement helps the parties establish a baseline of care that allows them to establish a healthy and productive coparenting relationship over the long term.
For more information or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.