How is Child Custody Enforced?
Child custody is a general term used to address parents' legal and/or physical custody of their child. Other terms with more specific definitions are used throughout the United States, and those terms will depend on your jurisdiction. Examples of legal terms include parenting time or allocation of parental responsibilities. Regardless of the legal term used in your state, we all understand that child custody most often refers to the legal and physical custody of your child. This is a very touchy subject and can become highly contentious during a divorce. Having an order in place is critical to ensure your child's rights, your rights, and the other parent's responsibilities are outlined, upheld, and enforced.
If you do not have a custody order in place in California, it is typically in your best interest to petition for one. Though parents might get along today and share custody in a way that mutually works, you never know what tomorrow will bring. A custody order will provide consistency and predictability much like a settlement in general litigation.
All too often, obtaining an order from the court for child custody is only the first part of the battle. If the other parent, or person that has visitation, does not honor the agreement, the custodial parent may have to take steps to have the court order enforced. While enforcement procedures differ by jurisdiction, the most typical method is by filing a motion with the court. This motion goes by different names, such as Motion to Enforce Custody and Visitation or Motion for Civil Contempt. The court will then schedule a hearing to find out why the order has not been upheld and decide the best way to proceed.
When the police are summoned to enforce a child custody order, they may or may not become involved. Absent a criminal act, such as kidnapping, police tend to favor not being involved.
If there is an emergency, you should request an emergency hearing with the court. Emergencies include situations where one parent refuses to allow the other parent to see the child even though it is in violation of the order.
It is always best to have an order in place that spells out who has custody, including when and where custody occurs. Absent a child custody order in California, enforcement is difficult. There's no legal basis for the police to get involved unless a specific crime has occurred. The courts cannot do anything either. You must file a child custody petition and obtain an order.
When a parent fails to follow a child custody order, they could be held in contempt of court. You can file a motion with the court to have the other parent brought before the judge again. The judge will assess whether the order has been violated and what the response should be. Many times, it may result in a modification of the child custody order.
If you have concerns regarding the rights of your children and yourself, it is in your best interest to take steps to protect those rights. The first matter to be addressed is having an order entered that states in clear terms that you have custody of your child. If you are in fear that another party that has no right to your child may try to take your child from you, keep a certified copy of the order on your person, and give certified copies to appropriate parties. This would include your child's school and the daycare your child attends.
Another wise action to take is to keep a detailed calendar of who has your child on any given day. Keep track of missed visitations and any other pertinent information.
Regardless of your particular situation, you should consult with an experienced attorney to assist in reviewing any current custody order, or to assist in the preparation of a custody order/agreement.
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