Everything You Need To Know About Fathers Rights
Enforcing Family Law Court Orders in Colorado
After divorce and child custody hearings, it is not uncommon for parties to fail to adhere to the court’s decision. Depending on the circumstance, noncompliance can be immediate or may start after a few years. It can be brought on by the deterioration of an ex-spousal relationship, or it could be ignited by a change in circumstance. While noncompliance can often be knowingly and willing committed, other times it may be brought on by an unexpected life event, which renders a person incapable of fulfilling the original order.
Examples of non-compliance with a court order:
- Withholding property from a party
- Refusing to sign documents for transference of assets
- Failure to carry out parental visitation plan
- Refusal to make joint-decisions for dependent children
- Delayed return of child to custodial parent
- Custodial parent restricting phone communication
- Failure to pay, or irregularly paying support
Remedies for a Noncompliant Ex-partner
If you find that your ex-spouse hasn’t followed a court order, perhaps in relation to alimony payments, parenting time or a child support order, then you have the right to pursue legal remedies to force that party to comply.
First option is to notify the party. Start by alerting the person that they are in violation of a court order and that if they do not comply, then you will call your attorney. It is important to keep a record of the notification as proof that your ex-spouse was aware of the violation. We suggest that this be communicated in writing.
If the party was unaware or has a change in circumstance you can try coming to a new agreement. It is important that if a new agreement can be made, that it be submitted to the court for approval. If it is not, then the opposing party can pursue legal action against you for not complying with the original court order, even when you both had previously agreed to the change.
If communication doesn’t work, then you can notify the police. The police can either help you enforce the court order in certain circumstances or provide you with an incident report, which you can use as evidentiary support if you need to go to court. This option should especially be considered when a child’s safety is at risk. Make sure you have an up-to-date, signed copy of the court order to show the officer.
If you believe that the violations will continue, then you will need to go to court. If communication fails and no agreement can be reached by either party, then a court may step in and resolve the issue. There are a variety of options when filing a motion. Depending on your circumstance, you can choose from the following:
- 1.File a motion for contempt. This motion gives the court the authority to force compliance through fines, jail time, wage garnishment, property seizure or community service, until compliance is met. In assessing contempt of court, first a court must see that the opposition party was willfully non-compliant – meaning they knew what they were doing was wrong, but they did it anyway (this is where proof of notification and/or a police incident report comes into play).
- 2.Alternatively, you can file a motion to enforce. Unlike contempt, this route will take a shorter amount of time, as a court must prioritize these motions over motions of contempt. Also, motions to enforce only take one hearing, whereas contempt has both an initial hearing and an evidentiary hearing.
- 3.Another option for those who are having trouble getting their ex-spouse to sign a document is to pursue Civil Procedure of Rule 70. This rule allows a court clerk or other 3rd party to sign a document in place of the noncomplying spouse. This option might be less of an ordeal than filing for contempt or even enforcement. This option is useful when your ex-spouse isn’t complying with a ruling on the division of property, such as signing over property or assets.
- 4.If your ex-spouse cannot make alimony or child support payments based on the fact that they make little or no income (perhaps from moving around and/or getting paid in cash), you may initiate a Qualified Domestic Relations Order (QDRO). This directs funds from the noncompliant party’s pension or retirement account to the parent in need.
- 5.If your ex-spouse moved to another state and they are in arrears (owe back-paid child support), under the Uniform Interstate Family Support Act (UIFSA), you can have them mail a letter to the employer of said spouse, which requires the employer to withhold pay. UIFSA can be advantageous because it uses government agencies to enforce support.
There are two types of contempt – direct and indirect. Direct contempt takes place in the court room and indirect takes place outside of the court room. Most likely, you will be filing for indirect contempt.
The court may then award remedial or punitive sanctions, or both, against the spouse that was in violation. Remedial is meant to solve the problem, while punitive is meant to punish the party who is being non-compliant. Usually punitive sanctions are related to direct contempt; aka a plaintiff who acts out during a hearing and disrespects members of a court. A judge may then seek punitive sanctions in order to vindicate the dignity of the court. Unlike punitive, in remedial sanctions you can get the court to order the opposing party to pay for your legal fees.
Pursuing contempt of court can be technically difficult, especially when having to serve the order to the party, as well as supply an affidavit of how they were non-compliant and provide live testimony in court. Additionally, burden of proof is the responsibility of the accuser, so it is important to keep a record of when and where the violations took place, as you will use this later in court.
Violating Child Custody
There are many ways a parent can, consciously or not, violate a custody agreement. Whether a parent is trying to get back at their ex-spouse by not complying with the court ordered visitation schedule, or by acquiring bad habits that puts the bests interests of the child in question – a court takes custody violations very seriously.
Typically, the most common violation of a custody order is referred to as “custodial interference” and in Colorado it is considered to be a criminal action. Whether the custodial parent is: inhibiting the other parent from having access to the child (not complying with scheduled visitation, or restricting telephone communication); keeping a child too long or; missing/cancelling scheduled visits, these grievances warrant the parent whose rights are being infringed to seek help.
Before going to court, it is wise to consider trying to reconcile with the parent who is committing the violation. A court expects parents to try and work together to resolve issues before seeking legal intervention. Additionally, parents that rush back to court often do so with minor offenses and/or with little evidence. This can hurt the petitioner’s credibility in court and may even backfire. If reconciliation fails, your next option is to begin collecting the evidence you will need to prove your case in court. This should include:
- Dates and times the violations occurred
- The written notice you gave your Ex of the initial violation
- Any incident reports filed by the police
- Witness testimony of said violations
Once evidence is collected, we advise seeing an attorney. They can make sure there are no holes or flaws in your case and even represent you in court. They can also assist you filing for a modification in custody. If you’d like to read more about modification, please see our article here.
Threat of Kidnapping
Unfortunately, the threat of a hostile spouse is all too real for some parents. If you are worried about such a spouse kidnapping your child because of what they see as an “unfair” custody agreement, there are precautions you can be taking:
- Keep recent photos of your ex-spouse and children – especially head shots
- Record all important information such as, passport/license/license plate/ bank account numbers, vehicle description
- Teach your children to memorize important telephone numbers and how to make collect calls
- Get legal help
Other potential issues to beware…
There are additional behaviors a parent may be exhibiting that can have an effect on their custody.
Slander. Vocally criticizing or badmouthing the other parent in front of the child is always regarded badly in court. This puts the child in a difficult position and a court will consider this behavior when altering custody agreements.
Smoking. A parent who smokes may be seen to be endangering a child’s health, especially if a child has health complications like asthma.
Moving. If either the custodial or non-custodial parent moves to a new city or state, it will usually impact a parenting schedule and require a new agreement be drawn up. Whether both parties are agreeable about the move or not, it is still important to make a court aware of such changes.
Role of Non-biological parent. Sometimes the presence of a step-parent or new partner can cause issues. Problems such as the biological parent telling a child that the step parent is now their new “dad” or “mom” is also not regarded well in the eyes of the court.
While these issues usually aren’t significant enough on their own to warrant a change in a custody agreement, they can often tip the scales in either direction. If you find yourself guilty of any one of the above behaviors, it is advisable to stop – these incidents will give your ex-spouse more ammo in court and most importantly, it is not good for the child in question.
I Owe Past-due Child Support, Now What?
Sometimes there are legitimate reason a person can fall behind in their child support payments. Falling behind or owing back-payments are also referred to as being in ‘arrears’ or having ‘arrearages’. As child support is a legally binding obligation, a person must seek a remedy with the court. It doesn’t matter if you and your ex-spouse come to a new agreement, you must get the courts approval. Especially as the interest can add up every day and a court can seek harsh punishments for those who can’t or won’t pay. Here are some options when dealing with arrearages:
You and your spouse come to a new agreement. Maybe your spouse agrees to waive part of what you owe, has become financially independent, or is cohabitating and sharing expenses with another party. In this case, then the custodial parent would need to file a waiver of arrears with the court and include a new agreement signed by both parents. However, upon reviewing each parent’s finances, the court will decide whatever is in the best interest of the child. This could mean that they approve of the agreement or they might make changes if they see it is unfair to one parent, or too disruptive for the child.
Changes in visitation or custody. Your child support is based on the original visitation/custody agreement. If circumstances change and you have assumed more parental responsibility, then you can ask a court to lessen or terminate payments.
File a motion for child support modification. If you or your spouse have a “substantial” and “continuing” change to either finances, employment, living situation or health, you have the right to seek modification. See our other article on modification here to read more.
Look for “extras” that you might be paying. If you can show that you have been paying more than just support, such as a child’s tuition or health expenses, then a court might lower your child support amount. Careful, you must show that what your paying is substantial (buying clothes doesn’t count).
Seek a paternity test. This method is only for those who suspect they may not be the biological father. If you have been paying for child support to a child that is not biological yours, you might be able to get the paternal father to reimburse you under the Uniform Parentage Act.
Interest on child support arrearages accrues 4% higher than the statutory rate (currently 8%), which is compounded monthly.
Whatever the reason, the most important advice we can give you is to file a motion immediately. Whether it is because of injury, illness, incarceration, or loss of employment, it is of the upmost importance that you file a motion to reduce, suspend or terminate payments. Even though it may take the courts months to decide on a new amount, they can make the decision retroactive to the date you originally filed the motion, not the date you became ill or lost your job.
Things that are not deemed valid reasons for modifying child support.
- Remarriage and additional children – Acquiring new dependent children when you remarry doesn’t mean you can then reduce your child support payment for the child of your previous marriage.
- Quitting your job – Just because you quit your job doesn’t mean your payments will change. This is considered to be a temporary and voluntary change.
R&H – fighting for you
Whether you need help enforcing an order or need advice on how to deal with arrearages, our attorneys at R&H have experience on both sides of the aisle.
Help Enforcing an Order: If you’re facing a noncompliant spouse, we know that there are many options to be considered when deciding what motion to file. Because we are fluent in federal and local law, we can help you locate the option that provides the fastest relief and get you the money or parental rights you deserve.
Fighting Untrue Claims: If your ex-spouse is attempting to lessen your visitation or parental rights by claiming you are unfit, we can help you. R&H has experience working with expert witnesses like the Child Family Investigators and the Parental Responsibility Evaluators. We know they lend a great amount of credibility to a case by making recommendations to the court on what is in the best interests of the child. They can also assist in debunking false allegations against you by performing mental health and drug addiction evaluations.
Help with Arrearages: At R&H we know that the legal ramifications of not paying child support are very harsh and can even be life changing. In the event you find yourself unable to pay, we know that every second counts and will work immediately at filing a motion on your behalf. Working with an attorney who knows the process and the ins and outs of the local court system means we can get this done quicker than you could on your own or with another attorney. We have a record of helping clients lessen their child support debts and negotiating payment plans that work for them.