In my practice, I find that most of the time, divorcing parents are able to come up with a custody schedule that works for their situation. In fact, there is even flexibility in the arrangement when necessary. If Mom has to work or Dad has to go out of town, both find a way to work together to make it work. This kind of situation is best for both the parents and the kids. I also find that when parents are able to come to an agreement on child support and other financial matters, they adhere to the agreements for the most part. I wish I could say there are no exceptions, but I can’t. Unfortunately, I get messages from time to time from clients who say, “My ex is not sticking to the court order.”
In other words, one parent is not respecting and adhering to the custody schedule or the child support amount or the holiday schedule that he or she agreed to in court.
Reasons someone might act in this manner–not stick to a court order are:
1. They don’t agree with what the judge ordered.
2. They are angry at the spouse.
3. They might even be doing it to frustrate the other parent—almost like playing a game.
4. They are unhappy about something else.
5. They are feeling worried financially.
6. They feel that they are getting along with their ex so they don’t need to follow it.
7. They don’t think their spouse will do anything about it.
If you start to see that your ex isn’t sticking to one of the court orders in place, you have a few options. You can:
1. Talk to your ex.
The best outcome here is a cordial conversation that resolves the issue. Even if that does not happen, it is still important to make the effort. After the conversation, document it an email or in the parenting app that you are using. This is important since the judge may look to what efforts were made to try to get compliance.
The downside is that this type of conversation almost always causes anxiety and maybe even conflict. If such a conversation will result in raging conflict, skip this step and have your attorney reach out for the requests for compliance. If a conversation will lead you to abandon your requests and capitulate to whatever your ex wants, let your attorney handle this step.
2. Ask your ex to go to mediation.
First, it is most likely this is a requirement of your Judgment either for divorce or for parentage. The person who is not getting what they are looking for needs to initiate this step. Yes, mediation will take time and money and can result in the dominant personality prevailing, but it is a necessary step.
The exception to this is if your Judgment does not require mediation or if there has been violence that would result in an “impediment” or obstacle to mediation. You can also skip this step if there is clear violation of the Judgment such as keeping the kids extra days after parenting time has concluded without an agreement in advance or failure to pay child support. You will not have to go to mediation for failure to pay child support, but since that is so connected with parenting time, the issue of parenting time in the mix, may necessitate mediation. A common example of this is the failure to pay because there has been a change in the actual parenting time used.
3. Call your attorney.
This is almost always a critical first step. The attorney will be able to counsel you on whether what you are seeking is reasonable and what the likelihood of success is. We will guide you as to the best next steps and talk it through with you with various alternatives. The attorney will confirm if mediation can be skipped. For example, if there is a clear violation of the Judgment that has not been complied with, you can proceed directly with a Petition for Indirect Civil Contempt also called a Petition for Contempt or a Petition for Rule to Show Cause.
We will be able to tell you if there are things that you need to improve to obtain compliance such as sending invoices on time, being consistent with parenting time, using a parenting app such as Our Family Wizard to document the conversations about compliance and agreements, and keeping your communications concise and civil so they can be presented to a judge if necessary.
4. Go back to court.
Going back to court for an ex who isn’t sticking to a court order:
You can ask that the court holds them accountable for ignoring and/or not adhering to a court order. They could be held in contempt of court which could mean punishment—including immediate payment, a fine or even jail time.
With the filing of a Petition for Contempt, once the party who files the petition has proven the basic violations, the burden of proof switches to the person who failed to comply. If Mom demonstrates that Dad has not paid support as ordered, or has not provided income documents each year if required in the Judgment, or has failed to return the children at the right times repeatedly, then dad must show why he did not do what he was supposed to do.
The person responding cannot simply say, “I did not have the money.” They have to show financial records that prove they did not have money and those account statements will be really important if they show purchases for dining out, cigarettes, cannabis, alcohol, concerts and other luxuries that come after child support, braces or payment for extracurricular activities.
If the judge finds that the failure to comply is not justifable, with “cause” or reasonable excuse/justification, then the respondent will be held in contempt of court. The judge will often “sentence” that party to an indeterminate time in the local jail. However, they will be given a specific period of time to “purge” or avoid that sentence. They will be given a precise time for a specific payment or other compliance such as returning the children on time for 6 months.
If those conditions are not satisfied, at the next court date, they may very well be sent to the local jail. The key to sentencing and penalties in contempt is that the person who is in contempt holds the keys to their jail cell. All they have to do is comply to be released. They will not be held in jail for punishment but rather to coerce compliance. The judge will not and cannot impose punishments in the process such as fines, but also will likely require that person to pay some of your attorney fees. They will not be held longer than 6 months in jail and they will not go to prison as some petitioners sometimes suggest.
If your ex is trying to stick to the schedule or trying to make payments but cannot, another option could be a modification to the parenting schedule or support amount. This could be done via mediation with a mediator or a settlement conference with the attorneys and the parties or by a judge’s order. In order to get a court order, you will have to go to a hearing, in person with formal presentation of evidence in a trial format.
Even if your ex isn’t sticking to a court order, you should…
Remember that by law, you don’t have the authority to make changes, which includes parenting time without the court’s involvement. For example, if the other parent doesn’t show up, you can’t charge them more money. If they fail to pay support, you shouldn’t try to withhold parenting time. If you and your ex do change the schedule, contact your attorney to have that confirmed in a court order and consider if it will change child support.
In closing, when an ex isn’t sticking to a court order, this can feel infuriating, frustrating and hopeless. We understand. And the legal process can take longer than you want, causing you even more frustration. A piece of advice: Try not to talk about it in front of your kids, or you are just going to be doing damage that you can’t undo later. Eventually, your legal issues will work out but your kids will never forget. The good news is, if you are patient and if you try to keep your emotions out of it, with an attorney that you trust, the legal process does work well. If I can help you in any way, please reach out.
Liz holds a law degree from DePaul University School of Law. She began her legal career with Williams & Montgomery in Chicago practicing in the area of insurance defense litigation. She defended claims for products liability, contract actions, declaratory judgments, automobile accident, premises liability and medical malpractice through multiple insurance carriers including Allstate, ISMIE, and many others while also handling a variety of litigation for the now defunct Venture Stores.
Seeking a more suburban practice, Liz moved to a firm in Vernon Hills and Chicago. While there, in addition to continuing the general insurance defense practice, she served as National Counsel for PST Vans managing their vehicular accident litigation claims across the country. She also handled medical malpractice cases for ISMIE and many Chicagoland hospitals and physicians and served as monitoring counsel for the Illinois Guaranty Fund for malpractice cases across the state.
Liz was a partner at the firm of O’Hagan, Smith & Amundsen/SmithAmundsen in the Woodstock office continuing to handle automobile accident, premises liability (slip and fall), medical malpractice and myriad of other types of insurance defense claims for State Farm, Farmers, Liberty Mutual, American Country Insurance as well as self- insured hospital systems such as Advocate.
Liz was a partner with Crystal Lake firms where she expanded her practice to include family law and injury cases for plaintiffs. With her knowledge and experience of the analysis and process the insurance companies utilize to evaluate and prepare cases for settlement and trial, she has been able to help many plaintiffs recover damages for injuries sustained in a variety of accidents including automobile and motorcycle accidents, injuries from falls and from the negligence of medical care providers. Learn more here.