Picture this, you’re sitting at home enjoying a nice cup of tea and getting ready to go pick up you
kids from your ex-spouse. 7:15 rolls around and you get in your car and drive to their school for
the exchange at 7:30. You have been exchanging the kids every other weekend, at the same time
and place for years. HOWEVER, this time, your ex does not show up immediately. After waiting
15 minutes you make a phone call. Your ex doesn’t even pick up. After waiting another 15
minutes you call again and no answer. You send a text message and a message on Our Family
Wizard. After another 30 minutes of waiting, you head back home stressed and panicked…
WHAT SHOULD I DO???
After a sleepless night, your ex finally responds the next morning saying sorry about missing the
exchange. You request an immediate exchange, but your ex says they can’t until 6:00 pm. DID
YOU TAKE THE KIDS TO SCHOOL??? Your ex responds no and that they had some travel
issues and got back late at night, so he let them sleep in and skip a day. WHERE DID YOU GO?
Your ex responds that they took a spontaneous trip to visit family in a neighboring state. You
remind your ex that the decree requires notice to the other parent for trips outside the state and
that you were worried sick. Another shallow apology and assurance that future exchanges would
be made. Thankfully your ex doesn’t have parent time for another 2 weeks with the holiday
schedule and the exchange was made smoothly that evening. Something like this happens every
couple of months, your ex ignores the Court orders and simply does what they want.
WHAT CAN I DO?
Here at Long Okura, we face these situations often. It’s a challenging situation for all parents to
communicate with an ex-spouse when parenting styles and schedules can be entirely different.
Some parents periodically violate orders in minor ways that cause stress but often do not justify a
significant legal action. Other times, parties explicitly ignore major provisions and leave the
other parent feeling burned. Even minor violations are still violations and can quickly add up.
It’s often difficult to understand what options you have and what is the most cost-efficient way to
enforce your rights as a parent.
The two main options for handling custody order violations are through a Motion to Enforce
(MTE) and Temporary Restraining Order (TRO). These two actions are often confused but can
be quite different. An MTE brings an action to point out violations of the Court’s orders and asks
the Court to hold the offending party in contempt. The case of Coleman v. Coleman sets the
standard for a finding a party in contempt under a MTE; the party bringing the action must first
establish (1) that the non-moving party “knew what was required under” the Court’s order; (2)
that the non-moving party “had the ability to comply” with the Court’s order; and (3) that the
non-moving party “willfully and knowingly failed and refused” to comply with the Court’s
order. If the Court holds a party in contempt, it can result in serious consequences such as
payment of attorney fees, make-up parent time, and jail time. Often the contempt is stayed for a
period, essentially delayed, and the party is given a period of time to cure the contempt. This can
mean catching up on late child support payments, medical expenses, and correcting their
violations. An MTE is the proper action for violations like the one above and is a longer process
than a Motion for Temporary Restraining Order.
A Motion for Temporary Restraining Order (TRO) is an action to prevent or limit an immediate
or irreparable injury, loss or damage. This is an Ex Parte motion meaning it is heard by the Judge
before the opposing party has the chance to respond. That means that the request must be
accompanied by an affidavit swearing that the allegations are true, and the harm expressed must
rise to a level in which the harm being prevented is outweighed by any harm caused by issuing
the TRO. It must not be against any public interest as well. Some situations that rise to this level
are parental kidnapping, abuse, and serious neglect. If the Court believes that the situation is
serious enough, they will grant the order allowing the harm to be prevented. Then a hearing is set
as soon as possible for the Court to look deeper into the issue. At this hearing, the Court has the
power to take action to prevent future harm and to change the custody orders to reflect the new
circumstances. However, the Court may reverse the order and return the custody orders to the
original situation. Filing a TRO that is unmerited or providing inaccurate information could
result in negative consequences. It is crucial that these actions are brought in only the most
serious of circumstances.
The key distinguishing factor between these actions is the danger level of the issue and the
timelines for handling it with the Court. A TRO requires serious and irreparable harm and can be
awarded immediately upon filing. An MTE can be brought for even minor violations of a Court
order and can take months to litigate. Here at Long Okura, we have a team of professionals that
are dedicated to helping you decide which action is best to solve your problems. If you have any
questions about your situation or desire to bring one of these actions, give us a call anytime.
By Jesse K. West
