How to enforce custody agreement?

May 22, 2007 11:58 AM

My ex-husband has violated our month old custody agreement three times already... how can I enforce? It's somewhat complicated....

Here are the facts- not sure which are useful...

My ex-husband was abusive towards me a few years ago. This resulted in a police report but no arrest.

During the course of our separation and divorce he harassed me by phone- I have a voicemail record of him making threats. (He's not very bright.)

During the course of our separation and divorce he was verbally abusive and threatening towards me in front of our young son (5) during a visitation swap. (I have primary custody)

After this event, I drafted a protective order and my attorney forwarded a letter to his attorney stating that from that point on, I would no longer be interacting with him by phone and would maintain contact w/ regard to our son's logistics via email and text. The letter also stated that I would no longer do visitation swaps in places that were not safe for me (his threatening behavior occurred at a metro parking lot.) My attorney figured that this letter would be enough to stop the behaviors and that we would not need to proceed with an actual protective order. Neither he, nor his attorney, responded to this letter.

While this was going on, we managed to reach a separation agreement- you may ask "how on earth" but, basically, I stupidly figured his behaviors would cease once an agreement was in place and that he would follow it. I wanted to believe it, for our son's sake, if not for mine.

Meanwhile, he continues to only contact me by phone, ignoring my request that we communicate in writing only for the indefinite future (unless there is an emergency.)

My ex-husband has, thus far, taken my son out of town w/out telling me (it states in our agreement that we must inform eachother when we take our son out of town), he kept my son an extra night without telling me his whereabouts until the hour before he was due to bring him back to me (it states in our agreement that he is to return my son to me by a specific time after each scheduled visitation)

Most recently he returned my son to me two hours late with only last minute notification (by phone, of course) and when I did not respond positively, he cursed me loudly in front of our son (who was in the car with him.) I filed a missing person's report w/ the police. He is not aware of this.

So, I am tired of being bullied by this man. The attorney I had through this process has left the practice and I have been handed over to someone who- while VERY competent- is not as available as I need right now and he is also VERY expensive.

This is what I want: An explicit modification of our agreement that outlines consequences for breaches and harassment. In the meantime, I want to withhold visitation.
I want to tell him via email that I am stopping visitation until these issues are clearly resolved. I want to call the police if he attempts to remove my child from school or if he shows up at my door.

Is it within my rights to do this? I am primary custodian and we share legal custody.

Please help! BTW- our sep agreement is governed by the laws of Washington DC.

posted by mistsandrain to grab bag (23 comments total)

First - IANAL.

This is a tough situation to be in. I can imagine you're very protective of your son.

Do not withhold visitation without a judges consent first. There is nothing life threatening about the custody agreement violations. If there were, they have emergency court hearings specifically for this purpose.

He can just as easily take you to task in court for withholding visitation -- no matter what reason you had for doing it. Visitation is not something you have a right to say 'yes' or 'no' to. You both have a right to see the child you both created. The judge already decided that when he approved your custody agreement.

You did the right thing by filing the report with the police; you have to have solid documentation to back up your accusations. The judge hears this crap all the time and can care less about most of it unless it relates to the childs well being. These emotionally charged situations lead to all sorts of behavior by both parties. You can't argue with the facts though.

I'm sure someone else will have better advice for the rest of it. If there is one thing you don't do though, it's withhold visitation. I know that much.
posted by jdgdotnet at 12:27 PM on May 22, 2007

OP here.

Thanks for your response,jdgdotnet- but, what can I do about his violations? Take him to court for contempt? And the phone harassment? Should I move forward w/ a protective order? It seems to me that he is voiding our agreement by not following it. This is so frustrating.
posted by mistsandrain at 12:34 PM on May 22, 2007

First - use caller ID and don't pick up the phone except when necessary.

Second - I don't know about Washington, DC - but most states have a "Friends of the Court" operation that has some power to create legally binding arrangements. Check that out; it's free in most places I've heard about.

Third - I would think that withholding visitation would only be a losing situation for you, since (in most courts' eyes) it means you are using your child as a negotiating tool, especially when little of what you write indicates any legitimate worries you have about your child's safety. From what you write, I don't know how this could be preceived in the best interests of the child, which is what ought to matter. You share legal custody; it's not your right to withhold visitation unilaterally. You have no protective order, and by your own admission there is little (LEGAL) evidence of your husband doing anything that terribly wrong. I'm sure he was abusive. He sounds like a bully. It sounds like he is trying to aggravate you. But until you attempt valid and legal methods to establish ground rules, what you are thinking of doing has no validity and may come back to bite you.

The reason that he and his lawyer did not respond to your wishes is simple. From their point of view, why the hell should they? They don't care about what you want. There's no force to a "wish." It's no different than if you asked him to send you a million dollars a month. What you have done is to let him know exactly how to get to you emotionally - which it appears he is doing.

With no set recourse for what to do when he returns your child two hours late, there's not much you can do. Filing a missing person's report when you knew where your daughter was (and after only two hours) may very well diminish your credibility should you ever really have a problem.

Go to friends of the court, or search for free legal aid - it's out there. Document everything and don't provide any fodder for his defense. Get a new lawyer - if someone's behavior is loony enough that you need to draft an order of protection, it'll continue (at least) until the order is made legal.

You're not going to win against this guy with false threats (letters, unfiled court petitions) and emotional reactions (withholding visitation). Your only recourse is to make it all legal.
posted by Dee Xtrovert at 12:35 PM on May 22, 2007

Good points.

Re: the missing person report- I called 311 when he was late b/c I wanted official documentation of the violation- I explained to the police that my son was most likely on his way but that he was very late without explanation- their official reporting tool in these instances is actually a missing person report. So, I did not mislead anyone- I just wanted third party documentation- which they were more than happy to give.
posted by mistsandrain at 12:40 PM on May 22, 2007

IANAL, but... You need to take him to court to enforce the agreement. If he isn't abiding by it, he is legally in contempt of court. If you feel he is harassing you, you need to get a restraining order prohibiting him from all contact with you except under specific circumstances related to your son, which should be spelled out in the order. You cannot prohibit him completely from contacting you by phone—what if, when he has your son, an emergency occurs and he must contact you immediately?

In the meantime, you must abide by your part of the custody agreement to the letter, and document every way in which he fails to do so. Don't give him a single legal leg to stand on.
posted by cerebus19 at 12:40 PM on May 22, 2007

Responding to your second post:

1) Keep a record of everything. If you can prove he is making actual threats, this will go a long way to having things work out for you. Record his violations too. Even if you talk to him on the phone (I wouldn't; if he calls with a question, tell him to e-mail and hang up), you should write him an e-mail which clearly states what you discussed and your understanding of the matter or matters. This creates a record. Don't rely on memory; records are more credible. If you say, months after the incident, that he was abusive on such and such a date, it's not nearly as credible as a well-penned "diary" entry about it written after the fact.

2) If your agreement does not spell out specific solutions to violations, than you need a new agreement.

3) YES! Get a protective order.

I know it's frustrating. But not doing the proper and expedient thing will only prolong it all. He's not going to turn into Prince Charming Ex-Husband suddenly. Show him how tough you are and don't back down. No half measures!
posted by Dee Xtrovert at 12:42 PM on May 22, 2007

Nobody here can help you, and while I understand that you are upset, AskMe is not talk therapy.

Talk with your lawyer, regardless of the expense, or find some less expensive legal aid -- which does exist. These are professionals who know what they're talking about.
posted by solid-one-love at 12:44 PM on May 22, 2007 [1 favorite]

I didn't think of calling 311 as an issue of documentation - good point. But I'd still hesitate to use the police as documentation of anything not technically a "crime." Friends of the Court (or whatever they call it where you are) can probably provide a better method of third-party documentation of violations. I'm thinking in terms of the sort of blasé way police treat people (especially women with custody issues) when they've been provided a rationale to ignore them because of repeated calls that turn out to be nothing more than "dad" being a couple of hours late. Some police are great and understanding, others will use it as an excuse to ignore you later. It probably wouldn't hurt to stop by and have a chat with an officer or two when there is NO problem and you're cool as a cucumber, just to establish your concerns in a way that can't be perceived as hysteria.
posted by Dee Xtrovert at 12:47 PM on May 22, 2007

OP

thanks for all the great responses..
Dee- I absolutely would not be so unreasonable as to ban phone calls in emergency. I want this guy to quit calling me 5 times at work and then 6 times on my cell to discuss matters easily covered in one email.

I am not sure how to document the times that he swears at me, calls me a fucking bitch- unless I can somehow record them. Is keeping a diary of these things sufficient?

I don't have any reason to think my son is in physical jeopardy when he's with his dad- I would, however, like to do a better job of protecting him from the awful comments his father makes about his mother.

sometimes I want to just ignore all of it- but then he takes my 5 yr old out of town on a long road trip and doesn't tell me at all about it until his van breaks down in rural, USA 6 hrs away. I'm just so sick of it.
posted by mistsandrain at 12:50 PM on May 22, 2007

solid-one-love

Actually, the posts have helped. I don't know where you are coming up w/ "talk therapy". you don't have to read my questions/ comments if they don't interest you.
posted by mistsandrain at 12:53 PM on May 22, 2007

sometimes I want to just ignore all of it- but then he takes my 5 yr old out of town on a long road trip and doesn't tell me at all about it until his van breaks down in rural, USA 6 hrs away. I'm just so sick of it.

Actually, this is something he’s doing right. He’s telling you what the story is. Ok, he should have told you before leaving town, but a genuinely awful non-custodial parent would have just shown up whenever he felt like it. So really, he needs some credit here. If I’d called you to say I’d be late and then you yelled at me, I’d probably be frustrated too.

Your ex is going to have visitation rights forever and you are going to have to figure out how to deal with him for the next twenty years or so. I have my own ex-from-hell so I know how impossible that feels. (Fortunately for me, we didn’t have children together. Even so it took me a good ten years to stop hyperventilating just thinking about her.)

But it isn’t impossible. It’s going to happen. You can’t stop him being a bully, you can’t clean up his language, but you can be a class act. This is the best thing you can do for your son right now. Figuring out how to do that in the middle of all this churning emotion might be something you’d want to discuss with a family counsellor. (Alone, not with your ex.) Talking with mothers who’ve been divorced for a while might help too. Find out how they’ve been able to make peace with a difficult situation.
posted by kika at 1:08 PM on May 22, 2007

Keeping a diary is sometimes all you can do - you can't really carry around a tape recorder (though if you could it would be great!)

Keeping a diary is much better than "remembering" things. Judges like the forethought and relative accuracy of them. Obviously, if you can record phone calls and save messages, this is wonderful - there's no disputing it.

You probably can't control what he says about you. Have faith in the intelligence and perception of your son. Eventually, he'll know who the "bad" one is - especially if you NEVER retaliate in kind to dad's comments. That's why withholding visitation is bad - you're sinking to his level and giving him a defense.
posted by Dee Xtrovert at 1:14 PM on May 22, 2007

Legally the diary notations are considered "memorializing" and while it may seem trivially different it's perceived more positively than just claiming to remember things. Good to do.

DC has many free services. You might want to go to the free child custody clinic even though you already have an agreement. There's other services there, including pro bono listings.

As far as your current lawyer being expensive - and that reads like s/he's MORE expensive than the last one - don't be afraid to call them up and say the current price structure is more than you can comfortably afford and if you can't come up with an agreement you may have to go elsewhere. What's the worst they can do? Decline?

Another possibly useless bit of information since you have an agreement is "the The Family Court offers free mediation through the Multi-Door Dispute Resolution Division (202-879-1549), which provides trained mediators who can work with you and the other parent to negotiate the terms of your parenting plan." Perhaps they'll work with someone post-agreement.
posted by phearlez at 2:40 PM on May 22, 2007

IANAL/P.

Get caller ID. Unless your son is with him, don't answer his calls. Respond to his non-urgent phone messages via email. Keep any recordings in which he threatens or verbally abuses you.
posted by joannemerriam at 2:52 PM on May 22, 2007

1. Build a relationship with a lawyer that you trust! There are so many land-mines out there, you can do something perfectly reasonable and have it explode in your face.
2. Listen to your lawyer!
3. You have another 13 years of dealing with this guy. (17 if he is supposed to help pay for college) Find a therapist who can help keep you sane and, more importantly, keep him from pushing your buttons (or least from letting him know that he has).
posted by metahawk at 3:56 PM on May 22, 2007

Side note: you should look into setting up supervised exchanges with your ex when handing off your son between yourself and him. Not only will this be potentially safer for you, it will give you third party witnesses to your ex's behavior. It will also ensure that you have a documented record of any times when your ex fails to arrive on time, or does not come at all.
posted by nerdcore at 4:01 PM on May 22, 2007

for the record, your ex-husband does not have the right to see his child..... your child has a right to see his father... and mother, of course.

it would behoove you to remember that. don't use withholding the child as a pawn to punish the father. you'll live to regret it, it's bad parenting practice.

punishment is not what you're after, it's compliance. remember that too. best of luck.
posted by taff at 4:26 PM on May 22, 2007

Those suggesting legal aid should stop, they'll assist you with getting a PFA (Protection from Abuse order) if there's a documented abuse episode (police report, witnesses, photos) but that has to happen within a very narrow time frame, at least in Philadelphia. Like within 48 hours, and every day that passes beyond that makes getting the order less likely.

Legal aid won't do custody problems, at least in Philadelphia they won't touch it with a ten foot pole. If they did they would spend every minute of every day on just those issues, there's that many families with custody problems who can't afford representation.

There are resources at least in Philly for women who want to be coached by an attorney on how to handle their custody problems in court on their own. Women's abuse groups have in house legal centers for this.

I just resolved a very ugly custody situation with a client last week, that took me months of banging my head against the wall to get the legal resources necessary so this information is pretty fresh and directly from the family law attorneys I worked with.

Sorry for what might be a derail but may be of use to future readers.
posted by The Straightener at 5:56 PM on May 22, 2007 [1 favorite]

Your first step is to talk to your attorney about this stuff. If you're represented by counsel as a matter of law, the last thing on earth you want to do is start doing your own DIY lawyering on the side. That kind of thing can seriously compromise your attorney's ability to help you. (Keeping a diary is a good idea, and does not count as DIY lawyering. Filing for a protection order on your own without giving your lawyer a heads-up DOES count as DIY lawyering.)

Do make sure that your lawyer knows that money is a serious factor for you. It's not unheard-of for a more expensive attorney to help her client find a less expensive attorney, when the client's in a financial pinch.

(IAAL, but (obviously) I am not your lawyer.)
posted by palmcorder_yajna at 7:27 PM on May 22, 2007

(And for pity's sake, don't withhold visitation unless your attorney tells you to. Here there be dragons. Seriously.)
posted by palmcorder_yajna at 7:36 PM on May 22, 2007

THANK YOU

for all the great posts. I was pretty worked up when I queried and now my head is straighter. I would NEVER want to use my son as a weapon against his father and I see how withholding visitation could be counterproductive and damaging. I see I will have to be slow and methodical in documenting infractions and not lose my patience, which is hard, b/c this guy takes jerk to new levels. I never disparage him to my son- I wish I could say the same for him.

I don't want my son to grow up watching his mother get pushed around by his Dad... but, I guess I have to hope he'll see who is reasonable and who is not.

thanks again....
posted by mistsandrain at 7:18 AM on May 23, 2007

Neither he, nor his attorney, responded to this letter.

Your attorney may have to resend it via certified mail. While it's possible that his attorney didn't get it, it sounds like the attorney may be pretending not to have gotten it. Really, though, you can't tell unless you send it with proof of delivery.

Meanwhile, he continues to only contact me by phone, ignoring my request that we communicate in writing only for the indefinite future (unless there is an emergency.)

If you see his number on your caller ID, let the call go to voicemail, and respond with an e-mail (or if you really want to be passive-aggressive and think it's worth 41¢, write him an actual letter in response).

I want to tell him via email that I am stopping visitation until these issues are clearly resolved…Is it within my rights to do this? I am primary custodian and we share legal custody.

Does your agreement allow you to stop visitation unilaterally? If it doesn't, I'd advise (as a layman) against doing that or anything else not in accordance with your agreement, especially if you're going to go after him for violating it.

And now, after reading other people's comments:
You probably can't control what he says about you.

You definitely can't control what he says about you.
posted by oaf at 7:54 AM on May 23, 2007

While you're in the middle of this, it's horrible. If you can step back a little, you'll make better decisions, and clearly posting here was a way to do that.

The more you interact with Ex, the more screwed up things will be. You want boundaries, as you obviously know, hence the written communication.

There should be a legal aid office somewhere near you. Look in the community section of the phone book, and/or call the women's abuse hotline. They should be able to give you a lot of help, and some emotional support. If you end up needing a restraining order, they can help. They're not very hard to get. Here in Maine, they give a lot of assistance; your state may vary.

Lawyers will help you emotionally, but that's really expensive. And lawyers see things in the adversarial framework, which doesn't help you deal with your life.

Try really hard to adopt a courteous, helpful tone in your communication. Be as blandly polite as possible.

Keep him well informed of your child's progress, events, troubles, etc. Model the behavior you want by emailing him notes about your son. Keep the focus on your child's needs, since that's where it belongs.

Your goal should be to promote a healthy relationship between your child and his father, because that's what's good for your child. Consequences that reduce visitation may not be in your child's longterm best interest. The more you remind yourself that your child's needs are ones that get priority, the better. It might take a very long time for you to see the payoff from this, but you will. The day your child begins to understand the work you put into taking care of him through divorce and coparenting will be really wonderful. I know this from experience. It doesn't make up for the crap, but it's the right thing to do, and your child will appreciate it someday.

Good luck. It's really hard, but you clearly are on the right tack, and making some good choices.
posted by theora55 at 10:48 AM on May 23, 2007