I hear this question often: the other parent is keeping me from my child, what can I do about it?
The short answer is … it depends! It depends on whether there is a court order already in place for custody and parenting time.
IF THERE IS NO COURT ORDER IN PLACE ADDRESSING CUSTODY AND PARENTING TIME:
You need to file a Motion to establish custody and parenting time.
The downside is that it will take you about 30 days to get into court so that you can get a custody and parenting time order. You could file for emergent custody but unless you can convince the Court your child is in physical danger, it will not be granted, and you’ll have to wait the normal 30 days. What does that mean? It means that the other parent can continue keeping you from your child until you finally get to court.
Since there is no Court order, the police cannot help you and force that parent to give the child to you because without a Court order, legally either parent is entitled to have the child. Sadly, without a Court Order, that same legal right permits a parent to physically have the child and keep the child from the other parent.
Now, don’t get me wrong, the Court will NOT be happy at all to hear the other parent has been keeping the child from you and that could hurt the other parent’s case for custody and parenting time.
What can you do to avoid this situation? I tell people over and over again:
Once you break up, go to court to get a custody and parenting time order.
In the words of Monopoly, well sort of: Go. To. Court. Go. Directly. To. Court.
Now, I get it. Maybe you and the other parent are getting along and have worked things out amongst yourselves that addresses custody and parenting time. That works for some parents. There are some parents who break up and never see the inside of a Courtroom.
However, the majority of cases do not end up that way. At some point, communication breaks down or the parties start disagreeing about custody and parenting time. Then, since there is no Court order, someone starts keeping the child from the other parent.
That is usually when I get a panicked phone call: the other parent is keeping me from my child, what can I do? And it saddens me every time to have to tell the person, you have to file a motion but it’s probably going to take about a month to get into Court and during that time, the other parent may continue keeping you from your child.
IF THERE IS A COURT ORDER IN PLACE ADDRESSING CUSTODY AND PARENTING TIME:
There are a few things to do.
First, go to the police department in the city where the child lives for enforcement of your Court Order.
Don’t forget to actually take your court order with you because they need to see the Order. Keep in mind that the police department will not enforce your court order if it does not specify the days you are supposed to have parenting time. For instance, an Order that says “parenting time as agreed upon by the parties” is too vague for the police to enforce. On the other hand, if your Order says you have parenting time every week starting on Friday at 6 pm, that is specific enough for the police to enforce.
Second, as soon as possible, file a Motion for enforcement with the Court.
You may decide you don’t need to do this if the other parent complies once the police help enforce the order. However, if it is an ongoing issue, you should absolutely file a motion for enforcement.
You may be thinking, filing an enforcement motion is pointless, the Court is just going to yell at the other party but that’s not really going to fix the issue. But, that’s not exactly true!
The Court has several different actions it can take when a party is violating a Court Order. They’re found in New Jersey Court Rule 5:3-7 which states, if a party has violated a custody or parenting time order, the Court could order the following remedies:
(1) compensatory time with the children;
(2) economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent's failure to appear for scheduled parenting time or visitation such as childcare expenses incurred by the other parent;
(3) modification of transportation arrangements;
(4) pick-up and return of the children in a public place;
(5) counseling for the children or parents or any of them at the expense of the parent in violation of the order;
(6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children;
(7) participation by the parent in violation of the order in an approved community service program;
(8) incarceration, with or without work release;
(9) issuance of a warrant to be executed upon the further violation of the judgment or order; and
(10) any other appropriate equitable remedy.
The usual remedy is make-up time with the child. However, changing residential custody is also a possibility, although it is not done frequently.
Let me give you an example.
I had a case recently. Mom was keeping the child from Dad and had a history of doing so. The Judge was frustrated by mom, and her attitude at Court did not help. The Judge told her he is on the verge of transferring custody and we have a hearing scheduled for that to happen. It also didn’t help that she blatantly lied to the Judge, and we had proof of the lie.
Third, get proof.
This could be:
Text messages of you asking for your child and the other parent saying no, you can’t see him or her;
Documents from the school or daycare confirming that the other parent told them that you cannot pick up the child; or
Police reports showing that you have filed incident reports because the other parent is not complying with the order.
WHAT’S THE IMPORTANT INFORMATION TO TAKE AWAY FROM THIS POST?
If you are no longer with your child’s parent, consider filing for custody and parenting time. Even if you two have a schedule you follow, get it documented in a Court Order. It protects both of you and prevents either of you from being able to keep the child away from the other.
Do not keep your child from the other parent unless you have a true fear for your child’s safety. But just because the other parent gets on your nerves or has made you angry and you want to get back at him or her, is not a good reason. This is true regardless of whether there is a custody order in place or not. It may seem or feel like a good idea at the moment but imagine walking out of Court without custody of or parenting time with your child because you chose to keep your child from the other parent.
Document everything! Hard proof of the other parent keeping you from your child speaks volumes to the Court. Plus, it's more reliable than he said she said.
File for enforcement ASAP! Don’t let it go on for weeks or months before you file. File immediately so that you can back to your child as soon as possible.
Do you need help with custody or parenting time?
Let’s schedule a consultation! Call me at 609-892-8773.