Jonathan Marks, STL Moms: Shared child custody refusal during summer months

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Producer 1:  Just to be different.

Producer 2:  From the guy that’s wearing it.

Margie: It’s a humidity jacket you’re wearing. Alright, speaking of it, it’s a hot button issue for many parents of divorce and kind of seems to escalate a little bit during the summer months. We’re talking about the failure to uphold the agreement for custody of a child. Family law attorney, Jonathan Marks with The Marks Law Firm here this morning with a way to handle that situation. Good morning.

JM:  Good morning Margie.

Margie:  Ya, you’ve seen a few of these cases over the summer.

JM:  Just a few.

Margie:  Ya, so what, let’s start out if if the parent refuses to hand the child over to the other parent, what do you do?

JM:  So at that point in time you really have to do a big assessment of the situation. Is this the first time it’s occurred or is it one of the multiple times it’s occurred? You also have to take a look at what your child is going to be seeing in this situation. So if it’s a first violation so to speak and you think it has a decent excuse, you still want to make sure you’re documenting it in writing and sending something to the other parent so that you know if you ever have to use this in the future in court that there’s something in writing that you attempted to try to resolve the situation. From the other hand, this is one of those situations that’s repeated and you know you’re in a position where you know you don’t want it to occur, you probably want to call the police and see if you can do some of an enforcement. But basically asking the police to do what they call a civil standby to try and enforce that custody order.

Margie:  Alright, and and there are two options that you have. Explain those.

JM:  So, as far an enforcement within the court?

Margie:  Ya.

JM:  So there are two routes that you could go. So let’s assume that this has happened on more than one occasion and you now need to take it to the next step. The first thing you can do is file what’s called a family access motion, which is a form that you can file on your own with the court system. It gets set pretty quickly within a court’s docket and within it brings both parents before the court to allow a judge to make a determination if there has been a violation. And if so, what relief is available to enforce this from not happening again. The second option would be what they call a contempt motion. Typically you’re going to go through an attorney. It takes a little bit longer for the ability to get that to go through the court system and it has you know fines and penalties associated with it but typically you want to have more than maybe just the custody violation, maybe consider a change in custody or some modification to your prior parenting plan.

Margie:  I think this one gets a little more tricky, but what should you do if the child actually refuses to go with other parent?

JM:  Yea, that’s a lot more tricky.

Margie:  Yea.

JM:  First of all, you need to take a look and see if the other parents is cooperating so that the two of you are on the same plane and you’re really looking at it like a child issue. Typically, when a child is not wanting to go on a visit, it’s a signal that there’s something more going on as opposed to just this one instance. So that’s the first thing you want to do. If you and the other parent are on the same page, you want to try to co-parent together, sit down with the child and see if you can’t figure something out and maybe take the child to some counseling to see if you can address the problem. If on the other hand, it’s really not a co-parenting issue and you have a parent who’s encouraging this child to not want to go with the other parent, you may be dealing with something called parental alienation syndrome, which is a huge problem and you really need to address it quickly by either contacting your attorney or getting some form of counseling intervention immediately to try to prevent the problem from escalating over time.

Margie:  Ya, a lot of people will have those independent attorneys who are just for the children maybe you call on them in that case but certainly get into counseling?

JM:  Sure, so the guardian ad litem may have been somebody they had in a prior case that they could email or call that person to see if they can get a referral of what to happen next. But typically what you would do is try to call the attorney that you use for purposes of your divorce or a new attorney, whoever you want to contact. But you want to make sure you get proper advice on how you should be handling the situation so it’s maybe one or two situations of a loss visit as opposed to three, four, five months down the road and you’re really looking at a problem that could take months within the court system to try to address.

Margie:  Yea, if if it’s parent alienation especially really jump on that, right?

JM:  Ya absolutely because that’s not going to change. It’s only going to get worse over time and the damage that gets done to a child’s psyche over that period of time because of their trust relationship with that other parent, is very difficult to overcome.

Margie:  Alright, family attorney Jonathan Marks, thank you so much we appreciate it.

JM:  Thank you.

Margie:  For more information on The Marks Law Firm, head to the STL Moms tab.

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