What can I do if my ex disregards the stay-at-home order and puts our children at risk?
I do not practice law in your state. Therefore, I cannot inform you as to the specific laws of your state, but I can provide you with general tips for this sort of issue.
As you are experiencing, many parents during this time improperly are ignoring the pandemic warnings. As such, many of the nation’s family courts quickly are responding to these types of situations.
That being said, the courts generally do not like to see parents engaging in self-help, which is when a parent decides what they believe is the best course of action without seeking court intervention. For example, if you decided to withhold your children based on the other parent’s behavior, this could be frowned upon by the court.
If you have an enforceable court order, you certainly have the right to inform the police that the order is not being abided by if the other parent is putting the children in harm’s way. At times, law enforcement is unwilling to engage in any type of situation which may be considered a family law matter and will direct people to file appropriate actions with the courts.
A lot of courts now are having emergency or expedited hearings, as it relates to contempt of custody orders. Further, if your jurisdiction is under a stay-at-home order, many courts have implemented virtual hearings, so you can participate in a hearing by phone or video conference.
In my jurisdiction, once a custody order is entered by the court, the court expects that each party will abide by the order, but the court does consider the best interests of the child(ren) paramount. If parties to a custody order do not abide by the terms of the order and/or put the children in harms way, the party seeking enforcement of the terms of the order has the ability to file a contempt petition against the offending party.
In order for contempt to be found, the moving party (the one who wants to show there was contempt) has to show that the offending party has “willfully failed to comply” with the court order. In other words, you have to show that a person purposely is not abiding by the terms of the custody order.
However, the courts generally will not enter a contempt order until such time as the custody order actually has been violated or there is a clear indication (i.e. a person actually stating, preferably in writing, that they will not abide by the terms of the court order) that the custody order will not be followed. If the courts find that a party is in contempt of the custody order, there are several remedies the court may utilize.
Some examples are: imposing monetary sanctions, awarding counsel fees if counsel is retained, changing of the custody order (a rare occurrence but may happen if contemptuous behavior is pervasive and ongoing), and potential incarceration.
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