June 05, 2019
In the family law forum it is well known that there are going to be those cases that never die, never go away and basically continue until the children become adults. As a law firm that primarily handles family law cases, we see our fair share of Divorce and Custody cases come through our door, but we also handle cases that there has already been a case prior to us meeting the client and they are still having issues that need to be addressed, post-decree.
One such issue we see a lot of are Enforcement cases. Usually this involves the situation where there is a visitation plan in place per the final order, ordered by the Court, and one parent is not following it. Either they have veered off on their own, or at some point in time the parents have agreed to veer away from the final order and now the parents aren’t getting along and no longer agree to the changes in visitation.
When a parent decides to stop visitation with the other parent or change it and the other parent objects, as a firm, we usually choose to wait and see if this is going to be a pattern of behavior or if its just a one-time thing. If it’s a one-time thing, even though its disruptive to the other parent and the children, its usually not the best idea to jump in and file a Motion to Enforce, especially if it can be worked out that the missed visitation can be made up in the future. Its not unusual for us to get a call when a parent is threatening to interrupt visitation or when a visitation has been denied once. We usually encourage a parent to wait to file anything unless it becomes a pattern.
Missing visitations is not just disruptive to the parent who doesn’t get to see their child, its also disruptive to the child, especially if the child only sees the other parent every other weekend. If a child doesn’t get to enjoy the other parent for a weekend that can ultimately mean that they may not see their parent for an entire month or more, and to a child that can seem like a lifetime.
We understand how one missed visitation can be upsetting, unfortunately, a pattern needs to be established for the courts to take action against a parent denying visitation.
Once we file a Motion to Enforce, that does not mean that automatically the visitation issues will be resolved. When any Motion is filed it has to be served on the other party either personally or through their attorney. Once they have been served then they have an opportunity to respond. When the Motion to Enforce is filed with the court, simultaneously, a hearing date needs to be set with the particular judge that the case is set in front of, usually the same judge that heard the original divorce or custody matter.
After the Motion has been filed and the date for hearing set, and the other party noticed and been given an opportunity to respond, depending on the parties it may be possibly to work something out and come to an agreement before the parties have to go to a hearing. The fact that this step has been taken means that more than likely the parties are at odds over something that is making a parent feel the need to stop visitation and the opportunity to agree and settle outside of court may be slim.
Depending on the county and their procedures regarding motions, the first hearing may be when everything will be heard; but more than likely the first hearing will be a time for the parties to set another hearing on the trial docket or set up mediation, again, this is somewhat dependent on the county the motion is being heard in. In Oklahoma county the courts require a different motion to also be filed, a Motion to Enter, to get a trial set, if a small hearing won’t suffice.
I’ve actually filed a motion in one of the smaller Oklahoma counties and went to court for the hearing date, expecting to get a scheduling order for a trial, and because that particular county’s docket was small enough, we went ahead and did a trial right then and there. Its best to inquire into each county’s procedures prior to attending a first hearing so you are prepared as to how they run things.
Resolving a Motion to Enforce can be done through mediation, if possible, or by having a hearing. If the parent has had their visitation interrupted for a long period of time and that parent has attempted to resolve without success, its possible the court can require the parent have his visitation time made up for the loss of time he has experienced.
Depending on the motion and what is asked for, its even possible to have custody switch from one party to the next based on the fact that the custodial parent isn’t fostering a relationship with the other parent, and by statute, the custodial parent is required to foster that relationship if they are going to be considered the custodial parent.
When children get into their teen years and if they are active in school or extra-curricular activities, its not unusual for the children to be the ones asking for a change in the visitation schedule, especially if the parents don’t live close to each other. This makes it difficult for all parties involved. The children want to be a part of their activities, but its also important for the children to have a relationship with their parents. These types of situations require parents to maintain level heads and try to compromise if possible and its always best if “the best interests of the child” can be the standard implemented by the parents.
Unfortunately, we see more than our fair share of parents unwilling to compromise and of course that’s what the court house is for.
Enforcement cases are just one type of case that come in under the Family Law heading after a final order has been issued. If parents can co-parent and work through issues like these, whether you follow the order to the letter or not your children will be better off because they know they have two parents who are looking out for their best interests.