You are co-parenting your child with your ex, and now you have concerns about the child’s safety in the other parent’s care. Your concerns may be related to drug or alcohol use, an unsafe home, concerns about physical abuse, etc. What do you do? This is one of the most common and difficult issues to address in any custody case. It is critical that you understand your options and the risks associated with each of those options.
WE DO NOT HAVE A CUSTODY AGREEMENT…
First, let’s assume you do not already have a custody agreement. You and your ex have simply been able to work things out. You have a schedule, but you now have some concerns. This scenario is much easier to address. Because you do not have a formal custody agreement, there is no custody agreement to be enforced, and there is also no way to be held in contempt for not following it (more on contempt later). In this scenario, if you feel your child is not safe in the other parent’s care, you may simply withhold the child until the safety concerns are no longer present. Keep in mind that if you choose to withhold, it may likely prompt the other parent to hire a lawyer and/or file a custody petition. If you do not have a “good enough” reason for withholding the child, a judge may view your actions negatively even though you are not subject to the actual punishment(s) which come with contempt.
The best route in this scenario is to communicate your concerns with the other parent, attempt to problem solve the issue to remove the concerns, and then immediately file a custody petition and ask for a temporary hearing. Depending on where you live, you can likely get a temporary hearing within four to six weeks, at which point you can explain your concerns to the court. The court will then enter a temporary schedule in light of those concerns until you either settle the custody case or go to trial.
WE HAVE A CUSTODY AGREEMENT…
The more difficult scenario is when concerns arise when you already have a custody agreement. In this scenario, things become a bit more difficult. If you choose to withhold the child, you may be subject to contempt proceedings for violating the custody agreement. Contempt proceedings arise when one party claims the other is not following a court order (in this case, the custody agreement) and if the Court agrees the order was not followed, you may be subject to penalties, including fines and potentially jail. Importantly, you can only be held in contempt if your disregard for the court order is “willful and wanton” or with a “bad or evil purpose.” In other words, if there are legitimate safety concerns, you may argue you are not trying to punish the other parent (which would be a bad or evil purpose) but simply acting to protect the child (which is arguably a “good” purpose). The problem is the standard for what constitutes a “good” or “bad” reason to violate a custody agreement varies widely from judge to judge. So, it is critical to be cautious whenever considering any action which runs contrary to the custody agreement, because there are potentially very real costs associated with those actions.
The Court can find you in “contempt” if a person against whom a temporary order or final decree has been entered willfully disobeys the order or decree, the person may be cited and punished by the court for contempt and be committed to the county jail for a period of time not to exceed thirty days for each offense. Iowa Code §598.23.
This leaves many parents feeling they are in a “no win” situation – either follow the custody agreement and potentially put their child in harms way or take action to protect the child by withholding visitation but potentially subjecting themselves to fines and/or jail. Making things even more difficult, once you have a custody agreement, you are not necessarily entitled to a temporary hearing like you were when you first filed for custody. This means it could be months before you ever come before a judge.
What are my BEST options?
The best advice is to talk to a lawyer, as every case is different, and your options will vary depending on the facts, where you live (because judges view these matters differently), the nature/scope of the concerns, etc. The good news is there are some options. Oftentimes, if the safety concerns are significant enough, the Department of Human Services (DHS) can provide assistance in ensuring the child remains safe until you can see a judge. Sometimes DHS can act as a stopgap between the time when the concerns arise to when you can see a judge. However, there is also a real downside to involving DHS. If you are concerned about physical abuse, you can also call local law enforcement to see if they will take action. You may also be able to get an emergency hearing addressing the concerns, but the success of this route depends a lot on your county and judge. There may be other options as well depending on the facts of the case.
So back to the original question – what do you do when you have a custody agreement and you are concerned about your child’s safety? The only safe answer is to call a lawyer. There are no guarantees that whatever route you choose is without risk, but you can work together to develop the best plan going forward considering the facts, the nature of the concerns, the risks (and penalties) you are willing to face, and other aspects of the case. Call our office for a free consultation with a family law attorney to discuss how to best navigate your concerns for your child’s safety, health, and well-being.
WHERE CAN I FIND THE BEST ATTORNEY TO HELP ME WITH MY LEGAL MATTERS?
As always, the lawyers at Tigges, Bottaro & Lessmann, LLP Law Firm are centered on providing exceptional legal services to the people of Siouxland and the surrounding area. The attorneys pride themselves on being first-rate advocates, ensuring their client’s rights and interests are protected and each voice is always heard. Using their knowledge, expertise, and over 240 years collective experience, they aim to deliver the best results possible for their clients.
THEY ARE SIOUX CITY LAWYERS YOU CAN DEPEND ON…
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