BULLET PROOF YOUR REQUEST FOR COURT ASSISTANCE
Note: This is the second of four blog postings that I’ll publish in as many weeks. You will want to read them all.
My previous and first blog posting on Bullet Proofing Your Summer Parent Time dealt with providing bullet proof advance notice of your summer parent time plans to your ex. The purpose of this blog posting was to ensure that by giving the best possible advance notice you can, your ex will not fight you and cooperate with you and your summer parent time plans.
Even if, however, you provided detailed, clear, courteous, and timely advance notice, if your ex wants to (again, pardon my language) screw with your summer parent time, he or she can start by ignoring your advance notice and failing or refusing to cooperate with you in your efforts.
If, after you have sent your bullet proof advance notice, your ex ignores or outright defies you, it is no longer a matter of providing notice. It’s time for you to go straight to court.
If you followed the suggestions in Part 1 of this series, you have already done much of the heavy lifting associated with seeking the assistance of the court in the exercise of your summer parent time.
Because the court either cannot or will not help you if you do not first demonstrate an established to the satisfaction of the court that the reason you are having difficulty exercising your summer parent time is due to the fault of your ex, and not your own fault.
So if you have done as directed in Part 1, then you have some of the best evidence you or the court could hope for. You have in your hands:
- a complete copy of the written notice that was provided to your ex at least in advance of the date school is dismissed for the summer (and if you didn’t read Part 1 before school is dismissed, then you gave as much advanced notice as you possibly could); and
- a certificate from the post office or FedEx and/or an e-mail read or delivery receipt proving delivery and/or receipt of your notice.
You will attach both a copy of your notice and proof of delivery/receipt to the documents you filed with the court.
If, in the course of notifying your ex of your summer parent time plans and making efforts to coordinate them with your ex, you also personally telephoned or met with your ex for this purpose, then if you follow the advice Part 1 , you had a witness present for that telephone conversation and/or during that face-to-face meeting. That witness can fill out and sign a written affidavit or verified declaration confirming that you provided notice, and that affidavit or declaration is further evidence you can provide to the court.
With your evidence of bullet proof advance notice in hand, you are now ready to seek the help of the court, and you’re in a very sympathetic position.
You have several options available to you when seeking court help:
- The most popular option (though perhaps not the most effective) is known as a Motion for Order to Show Cause Re: Contempt. Contempt of court occurs when someone who is subject to an order of the court knows about the order, has the ability to comply with the order, but willfully violates the order nevertheless. Clearly, if a parent is violating another parent’s custody or parent time rights, as ordered by a court, that parent can be prosecuted in the divorce action for contempt and sanctioned. What kinds of sanctions?
A fine not exceeding $1,000 and/or a jail term of 30 days, or both (note: a court commissioner may punish for contempt by a fine not to exceed $500 or by incarceration for five days or both). See Utah Code § 78B-6-310. Contempt—Action by court.
If an actual loss or injury to a party is caused by the contempt, the court, in lieu of or in addition to the fine or imprisonment imposed for the contempt, may order the person proceeded against to pay a sum of money sufficient to indemnify the party aggrieved and to satisfy his costs and expenses. See Utah Code § 78B-6-311. Damages to party aggrieved.
When the contempt consists of the omission to perform an act enjoined by law, which is yet in the power of the person to perform, the person may be imprisoned until the act is performed, or until released by the court. The act shall be specified in the warrant of commitment. See Utah Code § 78B-6-312. Imprisonment to compel performance.
- Another option, particularly when time is of the essence or when a parent and/or child is in danger in conjunction with a dispute over the exercise of summer parent time, is a Motion for Temporary Restraining Order. Rule 65A of the Utah Rules of Civil Procedure governs the procedure for obtaining a temporary restraining order.
- There is also the option of a Writ of Assistance. “Writ of assistance” means an order issued by a court authorizing law enforcement officers to take physical custody of a child. (Utah Code § 78B-13-102(17). Definitions).
Another, but least reliable, and thus often the least desirable, option for enforcing your summer parent time does not involve the court directly. This option consists of reporting your ex to the police or sheriff’s deputy (depending upon which law enforcement agency has jurisdiction) for the crime of custodial interference. Custodial interference, however, is not popular among law enforcement officers or prosecutors or courts. It is rarely charged and even more rarely prosecuted, and even more rarely prosecuted successfully. Still, it is important to report custodial interference to law enforcement officers, if for no other reason than to create a paper trail through the proper law enforcement channels that can provide useful evidence to you in pursuing other remedies such as those described above.
My next blog posting discusses how to argue your case for summer parent-time to the court, both in writing, and orally when you appear before the court commissioner or judge.
If you would like to speak to someone in receiving assitance in obtaining court assistance in securing your Summer Parent Time, click below.