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My Ex Won’t Abide by Our Custody ...

Dad and daughter

So, you do it. You go through the whole process of getting a custody agreement, or what we like to call in Colorado a “Parenting Plan,” in place. Your agreement outlines how parental responsibilities are to be allocated between you and your ex so that co-parenting runs smoothly and so that each party knows what to expect and when. But then your ex goes rogue and starts doing things their own way, without regard to your Agreement and without your consent.

When someone doesn’t follow the plan, aspects of life can become very overwhelming and so can figuring out what to do about it. Although we hope you never find yourself in this frustrating position, it will be best for you to know what next steps/options are available in case you do, in fact, find yourself in a position where you ex is not abiding by your custody agreement/Parenting Plan.

#1 – Disputes Concerning Parenting Time

Whether you and your ex drafted and filed your Parenting Plan yourselves, or the Court issued the Parenting Plan following litigation, if your Agreement regarding parenting time/decision-making/child support has been filed and approved by the Court, it is a Court Order. Accordingly, the laws of Colorado have legal mechanisms in place for when a parent is not complying with such order.

Colorado Revised Statutes § 14-10-129.5 dictates that if a party finds themselves in a situation where their ex is not abiding by a parenting order or schedule, that party may file a Motion Concerning Parenting Time Disputes outlining the details of such violation. Your ex will be given a time frame in which to respond. If, after the judge or magistrate review your motion and response to the same, if filed, they find that there has been or is likely to be a substantial or continuing noncompliance with the parenting time order or schedule, such judge or magistrate may either:

  1. Deny the motion, if they find that the allegation is inadequate; or
  1. Set the matter for a hearing with notice to the parents of the time and place of the hearing as expeditiously as possible; or
  1. Require the parties to seek mediation and report back to the court on the results of mediation within sixty-three days.

After a hearing, if a court finds that a parent has not complied with the parenting time order or schedule and has violated the court order, the court, in the best interests of the child, shall issue an order that may include but not be limited to one or more of the following orders:

  1. Impose additional terms and conditions on the parenting time order;
  1. Modify the previous parenting time order to best meet the best interests of the child;
  1. Order one or both parents to attend a parental education program at the expense of the non-complying parent;
  1. Order requiring the parties to participate in family counseling at the expense of the non-complying parent;
  1. Order the violator to post bond or security to insure future compliance;
  1. Order the violator to provide make-up parenting time to the aggrieved parent or child under certain conditions;
  1. Issue an Order finding the violating parent in contempt of court and impose a fine or jail sentence;
  1. Issue an Order imposing a civil fine on the violator (to be credited to the state treasurer);
  1. Schedule a hearing for modification of the existing parenting time order/schedule; and/or
  1. Issue any other order that may promote the best interests of the child or children involved.

Further, if the Court does find your ex to be in violation of your parenting time order/schedule, the court is to order such parent pay the aggrieved party’s attorney’s fees, court costs, and expenses associated with an action brought pursuant to this statute.

#2 – Consider a Modification of Parenting Time / Decision Making

Another option to consider if your ex is refusing to abide by your parenting plan is a Motion to Modify Parenting Time and/or Decision-Making Authority.

If a change of circumstances has arisen since the time you filed your agreement and you believe it warrants a modification of the agreement to serve the best interest of your children, you have the right to motion the court to modify the same, pursuant to C.R.S. § 14-10-129. For example, say your current plan gives your ex parenting time every Saturday, but your ex continuously refuses to exercise this parenting time; this would constitute a change of circumstances that warrants a modification of your agreement so that your ex is no longer allowed to exercise parenting time on Saturdays, if the Court finds this to be in the child(ren)’s best interest.

Alternatively, say your parenting time exchanges no longer work – your ex changed jobs and cannot make it to the exchange location on time. This could also be grounds to request that the Court modify your agreement, again, if it finds such modification to be in the children’s best interest. Keep in mind, however, if your ex is the primary parent (has more than 50% parenting time) you are wanting the Court to modify your agreement to make you the primary parent, the standard changes from being what is in the children’s best interest to a showing of endangerment, i.e., you have to prove that the current agreement regarding parenting time endangers the children. This same standard applies if you are wanting the Court to restrict your ex’s parenting time.

Unlike a modification of parenting time, a modification of decision-making authority is dictated by C.R.S. § 14-10-131. Under this statute, there are several factors that play into a Court’s decision to modify decision-making authority, the primary factor being endangerment, i.e., the current allocation of decision-making authority endangers the child(ren). For example, say you and your ex have joint decision-making authority and your ex is supposed to confer with you and get your consent before making any major decisions on your child’s behalf, but instead of doing so, they are making major decisions regarding the child on their own, without telling you or getting your consent. If you believe this violation of decision-making authority endangers your child, you have grounds to request that the Court modify this allocation of decision-making authority under the above-mentioned statute.

#3 – Motion for Entry of Judgment

If your ex is not abiding by your parenting plan/agreement with regards to monetary agreements, i.e., child support, contribution toward childcare expenses, extraordinary expenses, and the like, the best remedy would likely be a Motion for Entry of Judgement.

This Motion outlines to the Court what your ex was/is meant to be paying, what payments your ex has failed to make, how much is owed to date, and allows the Court to enter a judgement against your ex with regard to that amount, including interest compounding annually. Once a Court grants your Motion, you can use that Court Order as a means to get a lien against your ex’s property, garnish their bank accounts and/or wages, and so forth, until such judgement is satisfied.

#4 – Motion for Contempt

Contempt is an option for when your ex violates a Court Order, i.e., your Parenting Plan / Custody Agreement. There are two types of contempt – remedial and/or punitive.

To prove remedial contempt, you must prove the following:

  1. There was a legal court order (for example, a Parenting Plan);
  2. Your ex knew of the order (for example, they signed it);
  3. Your ex violated the court order (for example, they are not following the provisions of the Plan); and
  4. Your ex has the present ability to follow the court order (for example, nothing is preventing your ex from complying with the provisions of the Parenting Plan that they are violating).

To prove punitive contempt, you must prove the following:

  1. There was a legal court order;
  2. Your ex knew of the order;
  3. Your ex has the ability to follow the court order; and
  4. Your ex willfully defied the order.

Note, the burden of proof for punitive contempt is higher than for remedial contempt. For example, to prove remedial contempt, you mainly have to show that your case is more likely than not, or by a “preponderance of the evidence.” However, to prove punitive contempt, you must show that your case is “beyond a reasonable doubt,” i.e., the judge/magistrate could not reasonably doubt that your showing of evidence is true. Further, if your ex is found to be in remedial contempt, the consequences may be jail time and they can be ordered to pay your attorney’s fees and costs, or other fines that prompt your ex to start complying with the court order. If they are found to be in punitive contempt, the consequences can be jail time and/or fines, but not payment of your attorney’s fees and costs.

Further note that if you wish to proceed with the contempt route, this requires a Contempt Hearing in front of a judge or magistrate in which you must prove your case.

We know that dealing with an ex who will not abide by your agreement/Parenting Plan can be frustrating and overwhelming; we know it can leave you feeling helpless. Our team at Solutions Based Family Law Firm is here to help you navigate this time, outlining your options, what avenues may be best to pursue according to your specific circumstances, what to expect, and so forth. Give us a call at (720) 463-2232 or submit an online form to set up a consultation with a member of our team.