If you have a child and are facing a divorce, the issue you might be most concerned with is the child custody arrangements. Joint child custody is usually the preferred arrangement for families. It allows both parents to share physical custody of their child and be involved in his life. However, you may have problems with the other parent interfering with your custody rights. Your rights may be difficult to enforce in court if the other parent is also entitled to physical custody of your child. Talk to your attorney if your custody rights are being interfered with by the other parent.
Unstructured Joint Child Custody
Many people like the idea of a flexible, unstructured joint child custody arrangement. They think that they can work with the other parent and adjust to any changes with the child. However, there may be many problems with this arrangement.
If your joint child custody arrangement doesn't designate certain important information, you run the risk of having custody rights on paper but no meaningful way to enforce them. Some examples of custody information that, if not designated, could make a custody plan difficult to enforce include:
- Residential parent
- Specific periods of physical control of the child
- Restrictions on parental moves of the child
If the other parent moves your child and you don't have a restriction in the custody plan against parental moves, you must attempt to modify the plan to provide the lacking provision. You would be safer in having a structured joint custody plan to protect your rights.
Structured Joint Child Custody
Detailed child custody arrangements may be more desirable than a fluid, flexible custody plan. If the terms in the custody plan are well-defined, it promotes understanding and compliance for both parents. It'll be much easier for you to enforce your custody rights if you can show the court the specific language in the custody plan that's being violated.
Some states now require that the court and parents specify how the child's residence will be shared. States that require specific information about where the child will live at any given time include:
- New Mexico
Clear, specific language in your custody plan helps if enforcement issues come up, and discourage violating the plan's terms. Addressing matters such as moving will help in the return of your child if the other parent moves out of state with the child.
Enforcement of Child Custody Rights
Several types of court proceedings are available to enforce your custody agreement. These include:
- Contempt of court
- Habeas corpus
- Injunctive relief
A contempt of court proceeding is the most common means of enforcing a custody arrangement. A person is held in contempt if there's been a failure to obey a lawful court order, your custody agreement. A person can be fined or even put in jail for contempt.
A petition for a writ of habeas corpus states that someone is wrongfully in possession of your child and that you've a legal right to him. The writ enables you to regain possession of your child.
A court may order an injunction to compel a parent to do or refrain from doing something. A parent who violates an injunction may be held in contempt. P>
Questions for Your Attorney
- What proceeding would be best to initiate against the other parent to enforce our custody and visitation agreement?
- May I move with my child to another state without permission if there's no restriction in the child custody agreement against parental moves?
- What level of interference of a custody agreement will a court decide is enough to warrant an enforcement remedy?