Modification (Part 2)

If your ex doesn't follow the divorce decree

What if your ex-wife refuses to follow the decree despite your charm, patience and diplomacy? What if, despite your winsome and cooperative ways, your ex tampers with your rightful role in your kids' lives? After attempting to resolve the matter amicably by correspondence, a full retaliatory strike may be appropriate. Pause only long enough to ensure a solid record of the trespasses exists.

Bear in mind, however, that when in doubt, it is better to feign a determination to fix things amicably than to precipitously plunge into court with comparatively minor and premature complaints. The court's sympathy may lie with your ex-spouse when you jump the gun or are otherwise perceived as reactionary.

However, if you decide to go to court, you may file a Motion for Contempt (usually civil contempt) to remedy the other party's non-compliance. Technically, a contempt action is appropriate anytime a party "contemptuously" violates any provision of the decree. As a practical matter, however, the violation(s) should be significant. Remember that to be found guilty of contempt, it is not enough for the court to conclude that the accused party did not act in accordance with the decree. The court must also conclude that the accused party did so deliberately and without good reason. Your burden in most states is simply to show that mom did not comply with a court order, whether regarding temporary custody, consulting with you on issues regarding the children, or any other provisions of the court order. It is then up to the mom to present evidence that she did not have the ability to comply or that it was an "honest mistake." Often, a motion for contempt will be filed in tandem with a motion to modify. If the contempt motion is well supported by facts, this approach can enhance the credibility of your modification claims. A court may decide to modify any portion your divorce decree.

If you succeed in proving your case for contempt, the court has a whole range of remedies which you can request, ranging from incarceration to attorney fees to compensatory custody time to other, more customized remedies. Contempt can be a very powerful lever if the evidence is there.

This online custody guide is adapted with permission from "Civil War: A Dad's Guide to Custody" (266 pages, softcover) - available in our online store.