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Thursday, May 1, 2014

Failure to Follow Brooklyn Child Custody Orders Can Result in Court Sanctions

Parents who are separating or divorcing often turn to the courts to help them establish a parenting time plan that is both fair to the parents and beneficial for the children.

Unfortunately, our Brooklyn child custody attorneys have seen cases where some parents have used children as a weapon against the other parent. This can backfire, though, because family law judges tend to treat these sort of actions with disdain.

This is what happened recently in the case of Shindell v. Shindell, reviewed by the Wyoming Supreme Court. Although this was an out-of-state case, it's a good example of the sanctions judges may place on parents who fail to comply with child custody orders.

According to court records, the parents divorced in 2004, and the mother was given primary residential custody of their two daughters. Over the years, the father filed numerous complaints against the mother for failure to comply with custody orders. The district court responded by issuing specific orders to the mother and demanding her compliance.

Then in 2012, the father moved to Indiana and remarried. He attempted to arrange for his daughters to fly to his home to spend spring break. However, the mother learned that the father had pets in the home, and was concerned for the health of their oldest daughter, who suffered from severe asthma. She consulted with a doctor, who reportedly advised that the girl not be exposed to those conditions. Thus, she did not put either girl on a plane to visit their father. The two also didn't visit their dad during the summer, although he was entitled to summer visitation via the court order.

In August, the father filed a motion for order to show cause why the mother should not be held in contempt of court for refusing to comply with the communication and visitation decree. A hearing was held, and the mother presented evidence of the daughter's health risk in visiting their father. However, there was also evidence she had violated court orders by refusing to facilitate communication between the girls and their father and also failing to notify and include the father in decisions regarding the girl's education, medical care and other matters.

For example, she enrolled the girls in a new school without consulting the father.

As a result, the district court found the mother in contempt of court. For this, the court ordered that the mother:

  • Pay for plane tickets for the girls to see their father during the following winter break and spring break;
  • Ensure there was unfettered communication between the girls and their dad;
  • Pay the father's attorney's fees and court costs, as well as pay the costs for the guardian ad litem.

The mother subsequently appealed that ruling, but it was upheld by the state supreme court. The court determined that the mother was thoroughly aware of her responsibilities, and chose to ignore them. Regarding the issue of her daughter's health, the court deemed that it was a legitimate concern, but rather than simply ignore the order, she had a responsibility to seek a modification from the court.

The mother had attempted to argue that the court failed to consider the girls' preferences, as she indicated they did not want to visit their father. However, she did not make them available for testimony, saying she did not want to have them involved. For this reason, the high court ruled that the lower court didn't abuse its discretion in failing to consider it. 

The bottom line is that not complying with orders of the court can result in serious consequences. If you believe a modification is in order or want help in enforcing the order that currently is in place, it's best to consult with an experienced lawyer. 

Those looking for help with New York City child custody disputes, should call our offices at (718) 864-2011.


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