Divorcing spouses fighting over child custody may ask this question of their lawyer at some point during or after their divorce when the other parent does not comply with the parenting schedule. A common scenario is when the ex-spouse does not return the kids on time. The schedule may have been set forth in a Court order, a Judgment for Dissolution of Marriage, a written parenting agreement, or some other agreement between the parties.
When you look at the agreement, you know that you are right. It is 7:15 p.m. and he was supposed to have the kids back by 7:00 p.m. It is Sunday and they have school tomorrow…It is Friday at 5:00 p.m. and you are at her house to pick up the boys for the weekend. It doesn’t look like anyone is home. What do you do?
Generally there are 3 people whom you can contact: 1.) Your spouse/ex-spouse; 2.) your child custody lawyer; and 3.) the police. If you have a reasonable basis for believing your child(re) may be seriously endangered, by all means, call the police.
There is another option: Take a deep breath and consider the following—how late past the drop off time is it? Are you capable of effectively communicating with your spouse/ex-spouse via text and/or calling him or her? Is it reasonable to call your lawyer right now? Would calling the police make you look “crazy”? Do you want to risk exposing your children to the police over this?
Often, but certainly not always, the answer to whether you should call the police is “no.” (In the case where no one is home, the answer may be “yes”.)You may call your lawyer depending on the circumstances, but, even then, there is often little he or she can do to get your spouse/ex-spouse to return the child or children home in that moment. The typical recourse is for your child custody lawyer to file a contempt action, for violating the parenting schedule, against the other parent.
Depending on how egregious the violation was and what other long term goals there may be in your case, your lawyer may recommend that you do not pursue a contempt action.
Many parents grow frustrated by this advice and sigh, “But he is always getting away with it….” It is critical to talk to your lawyer about other measures you can propose that may resolve the problem rather than calling the police, especially in occasional situations when the ex does not return the kids on time.
