To Violate a Custody Order or Not to Violate? That is the Question

One of the hardest decisions a parent or guardian can face in a custody dispute is whether to violate a custody order when they believe the other parent is endangering their child or not acting in the child’s best interests. As anyone who has been involved in the custody process can attest, the wheels of justice turn rather slowly and make it difficult for a parent to address an issue quickly by changing the terms of a custody order through the usual channels. This leads to parents usually acting hastily, which can cause trouble down the line when the case finally does find its way into court.

So, what does a person do to make sure that their child is safe and secure, while still acting within the confines of the law?

First, talk to your own lawyer and discuss with him/her all of your options. Sometimes issues can be resolved rather easily with a strongly worded letter to the offending parent from your attorney. When faced with the prospect of being hauled into court and facing a judge for one’s misdeeds, most times people start acting right again.

If that doesn’t work and the issue is severe enough, your lawyer will probably advise you to file a Petition for Emergency Custody. Now, this is not just some run of the mill motion that the courts hear or litigants utilize frequently. Rather, it is more like a nuclear weapon, to be used only in cases of dire emergencies, due to the ability for it to cause permanent damage to the parents’ relationship and the possibility of blowback from the courts if the petition is not firmly grounded. I only ever use this option if I and my client agree that the offending parent’s actions are such that the children are in danger of being permanently physically harmed. As an example, a few years ago, I was successful in arguing for an emergency custody order (an in fact, the order changed primary custody from one parent to the other) when the offending parent was accused of physically abusing her special needs child and neglecting the developmental needs of her other child. Still, even with Children and Youth, the children’s physicians, and an array of social service agencies behind my client, it was still a close call with the judge because of the monumentality of what we were asking for.

Outside of an issue like that, I almost always recommend my clients to file Petitions for Contempt. When parties come to an agreement to custody, that agreement is almost always memorialized as a court order. When a case goes to trial, the resulting custody decision always becomes an order. If one parent violates the terms of such an order, one of the remedies is to ask that the judge punish the offender by citing them for contempt. Now, a judge or custody officer making a recommendation to a judge, has wide discretion about what exactly that punishment will be. The courts can do anything from fining the offending parent, to modifying the terms of the order, or even changing custody altogether.

For non-custodial parents, a contempt citation is a weapon that can keep the primary custodian honest and protect against them controlling the entire familial dynamic by making their own rules. A citation can even lay the groundwork for a future attempt at gaining primary custody for themselves.

For primary custodial parents, a contempt citation can be a warning to the non-custodial parent to shape up or risk further eroding of their visitation schedule or decision-making rights.

So, the next time your ex starts acting in a way that you don’t appreciate, that you believe can endanger the children, or that violates a custody order, don’t immediately act impulsively or out of anger, consult your attorney about the issues and take the appropriate steps within the friendly confines of the law. It may not be instantly gratifying, but you will thank me later.

For a hassle-free consultation at NO CHARGE with an aggressive and exceptional legal advocate, call the Law Office of Hank J. Clarke at (570) 622-2288 or visit my website.


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