day in Court in custody and divorce matters, because it is finally their day to tell their side of
the story. Many people anxiously
anticipate having a neutral third party (the Judge) sending the message to
their former partner that the position they have been advocating for is correct. However, it also means that a third party who
does not know your family or your children as well as you do and does not have
a personal attachment to items that are precious to you will make life-changing
decisions about how much time you get to spend with the children, whether you
are able to move with your children or who gets possession of your items of
And what happens when the Judge gets everything wrong? When the Judge gives the other party the rights over property that you do not think that they deserve? When the Judge’s Orders ruin your holiday plans? Or when your children are begging you that they want to stay with you rather than go visit the other party as stated in the Custody Order.
You can appeal the Court’s Order. (You can call our office if you have any question about that process). However, filing an appeal can take time. Do you have to follow the Court’s Order until then, even if it does not make sense? Or even if you feel that the Court Order puts you or your children in jeopardy?
The short answer is yes. There are very few circumstances in which it is acceptable not to follow an Order issued by a Judge. And it often makes a Judge pretty upset when a party intentionally fails to follow their Orders. A party who fails to follow a Court Order can be found in Contempt of Court. In those cases, the Court has the authority to issue a fine to the offending party, make the offending party pay the other party’s attorney fees or even sentence the offending party to a term of incarceration.
In a recent private case that was handled by our law firm, Wife was granted Exclusive Possession of the Marital Residence. By an Order issued by the York County Court of Common Pleas, Husband was directed that he was not allowed to be at the Marital Residence for any reason. However, Husband knew that Wife worked overnight as a nurse and he claimed that he had concerns for the safety of his teenage children who were left in the home unsupervised while Wife was working. Despite the Judge’s Orders, Husband entered the Marital Residence and even stayed overnight on occasion. Our firm filed a Petition for Special Relief with the York County Court and a York County Judge issued an Order that directed that Husband was in contempt for each time that he entered the Marital Residence and was directed to reimburse Wife for $4,000.00 in attorney fees. In the event that Husband does not pay the attorney fees as directed, Husband could be facing a period of incarceration.
So, what should a party do if following the Judge’s Order is not an option? What if it does not make sense to follow the Judge’s Order? Or what if following the Judge’s Order is upsetting to you or your children? Or puts you or the children in harm’s way?
Each case is different and the answer to these questions and what should be done often vary depending upon the case.
For example, it is not unusual for the parties in custody cases to both claim that the child(ren) is(are) telling them that they want to stay with them and not go to the other party’s home. Parties often ask if they need to force their child to go to the other party’s home if they do not want to go. If there is a Custody Order in place, the terms of the Order need to be followed, even if the children are expressing that they do not want to follow it. The Court’s view their Orders the same as the responsibility of parents to send their children to school – the parents should send the children, even if the children do not want to go. However, the parties can file a Petition to Modify the Custody Order and request that the Court take the child’s wishes into consideration. The children’s desires are one of the factors that are considered, although it is not the only factor. Additional information about the custody factors and the weight given to the preference of the children is provided on our website under the Custody section.
However, if there is a danger of harm to the child by following the Custody Order, that should be immediately brought to the Court’s attention. For example, if you learned that your ex-wife, who has custody of the children, has moved into a home with a known sexual offender. Or if the other party is now living with an individual who has drug or alcohol abuse issues. In those cases, it is best to file an Emergency Petition for Special Relief to bring those issues before the Court to ask the Court to change the terms of the Order, since the children are at risk of harm by following the Order. In certain circumstances, it may be appropriate to file a Petition for Emergency Custody or what is otherwise referred to as a Petition for Special Relief. More information on these types of Petitions can be found on our website under the Custody section.
Another scenario that happens is that a party may agree to refinance the marital residence into their name alone, but are later unable to locate a bank that is willing or able to provide the refinancing. In that case, it may be better to file a Petition with the Court to address the matter, rather than wait for the opposing side to file a Petition for Enforcement and ask for sanctions to be imposed against you.
The best way to handle a case in which you do not believe that it is appropriate to follow the Court Order varies depending upon the circumstances. If you have a question about ways to modify a current Court Order, whether your case qualifies for the filing of a Petition for Special Relief or options on requesting enforcement against an opposing party who is refusing to follow an Order, you should call our office at 717-461-7789 and ask to speak to one of our attorneys who will be glad to assist you.