Court Order v.s. seperation agreement


#1

Hi,
I am separated and have no separation agreement. My wife is trying to turn my children against me. I know that I will need something with “teeth” to get visitation with my children. I will likely need law enforcement assistance at times. Is my only option to file a custody lawsuit and go to trial so I can get a court order? My understanding is that is the only way to get a court order which makes it a criminal matter when she refuses my court ordered visitation rights. Thanks so much for any help on this.


#2

If you believe that you will be running into problems from the outset custody should be in a court order. You may file suit and then work towards settling the scheduling issues with your spouse. If you can reach an agreement it should be place in a Consent Order, which is essentially and agreement between the parties which is entered as a court order by the judge.
Once you have an Order your spouse will be subject to being held in civil contempt if she is found to have violated the order. In order to have a hearing on that issue you would need to file a motion to show cause.


#3

Thanks so much for responding Erin…this is tremendously helpful to me. Can you share what the penalties might be for “civil contempt”?


#4

Civil contempt penalties can be in the form of fines set by the judge, or even jail time. However in the civil arena one must be able to “hold the keys to his own cell” meaning that there must be some sort of action a person can take to purge themselves of contempt. An example would be a person in contempt of a child support order would have the option of paying the back support owed within certain amount of time (a few hours normally) or be sent to jail until the back support was paid.


#5

Thanks again Erin. Just so I am clear, a consent order can be obtained only by filing a custody lawsuit…and then either going to trial or coming to agreement before then. Correct? I want to make sure I have my facts straight before laying out something like this to a hostile STBX. Thanks so much for spending the time to answer my questions.


#6

Yes, a law suit must be filed at some point to have any order entered. Sometimes folks will go through the negotiation process first and file suit once an agreement is reached. These are called “friendly lawsuits” in which the complaint indicates that suit is being filed solely for the purposes of submitting to the court’s jurisdiction.