In the best case scenarios, custody orders are made with the best intentions. They’re designed to ensure that the child benefits from maintaining solid relationships with both parents. Even when there isn’t an exact division of custody, this is usually in the child’s best interests.
Naturally, even after these terms have been set, some parents won’t be satisfied with the outcome. Rather than pursue the correct channels for modifications, there will be those that choose to take matters into their own hands and simply breach the custody order.
If you’re facing this challenge, it can be stressful for both you and your child. But can the police enforce a custody order to remedy the situation? Let’s explore this option a little further.
Are There Legal Grounds for Police Enforcement?
Can the police enforce a custody order? Well, the simple answer is that yes, they can. But, as with so many legal matters the full story is a little more complex than this. If a parent doesn’t strictly keep to the custody agreement, you’re unlikely to get a positive response by calling the police and requesting they force your ex-spouse to comply. Therefore, it would be more accurate to say that the police can enforce certain aspects of custody orders under very specific conditions.
Generally speaking, this arises when the situation graduates from simply not following custody orders to a potential kidnapping case. This is a serious and complex issue. Indeed, calling the police to address such matters means they’re effectively responding to an accusation of a felony, rather than to enforce a minor custody breach. Therefore, it can have very real consequences for your former spouse and even have consequences for you if you’re considered to be wasting police time.
Unless the other parent willfully takes your child out of state or even out of the country, the first step usually isn’t to contact the police immediately. In fact, even if your ex refuses to return your children as per your appointed custody arrangements, you might even get a response from them that custody is a civil matter and, therefore, not within their remit. If you know your child’s whereabouts and they aren’t in imminent danger, your first call should be to your family law attorney.
What Is the Usual Process?
The assistance of your attorney usually helps things run more smoothly, which is particularly reassuring when you’re navigating the stress of the situation. In most cases, your attorney will talk through the facts of the case.
In essence, you’ll be seeking to establish whether the situation is likely to fall under the definition of parental kidnapping. This behavior is also otherwise known as “custodial interference.” It’s outlined under the Colorado revised statutes section 18-3-304 as follows:
“(1) Except as otherwise provided in subsection (2.5) of this section, any person, including a natural or foster parent, who, knowing that he or she has no privilege to do so or heedless in that regard, takes or entices any child under the age of eighteen years from the custody or care of the child's parents, guardian, or other lawful custodian or person with parental responsibilities with respect to the child commits a class 5 felony.
(2) Except as otherwise provided in subsection (2.5) of this section, any parent or other person who violates an order of any district or juvenile court of this state, granting the custody of a child or parental responsibilities with respect to a child under the age of eighteen years to any person, agency, or institution, with the intent to deprive the lawful custodian or person with parental responsibilities of the custody or care of a child under the age of eighteen years, commits a class 5 felony.”
Parental kidnapping can bring with it not just police enforcement of the custody order but also hefty penalties. In the first instance, your attorney might contact the other parent to remind them of the terms of the custody agreement and that steps to pursue the felony charge may be forthcoming if cooperation with the order isn’t resumed. In some areas, the police might also be willing to visit your ex to persuade them to remedy the situation before the matter is taken further.
If your ex doesn’t respond positively, your attorney might advise you to take the matter to the courts. This involves filing a motion that outlines how the other parent has breached the terms of the custody order. It is important that you and your attorney gather sufficient evidence to support the claim. You need to be able to show that there was a willful breach, rather than an error on their part. You must also demonstrate that they have refused to return your child for an extended time, rather than merely being a little late occasionally.
Should the court find in your favor, they may instruct the police to enforce the custody order by returning the child to your care if they still haven’t returned from your ex’s home. They might also issue penalties, which might include a custodial sentence.
Are There Alternative Options?
Getting the police involved with enforcing custody orders is usually an extreme step. Yes, in some instances, law enforcement may well prove necessary. Nevertheless, it’s worth considering the impact such a situation can have. You’re likely fully aware that your kids’ emotional and psychological welfare could be affected by the police intervening in custody matters or seeing a parent arrested.
Therefore, you may be considering what other options are open to you other than police involvement.
Alongside the aforementioned intervention by your attorney, one popular alternative option is mediation. When one parent breaches the terms of a custody arrangement, they usually have what they may feel to be solid reasons for this. Mediation can be a good tool for getting both parents to discuss this in a neutral environment with an independent third party.
This is something you can pursue independently. However, it can be more practical to have your respective attorneys present and involved with the mediation process. The mediator will facilitate the discussions and provide both parties with an opportunity to discuss their concerns and expectations.
In some instances, this open dialogue can result in the other parent adjusting their behavior to resume the custody order. There may be other issues at play that could result in a need for adjustments to be made to the custody order for everyone to be satisfied with the outcome. However, bear in mind that new agreements during mediation are not enforceable until the modifications have been submitted to the court and the order changed accordingly.
Remember, though, that mediation is not a guaranteed success. Indeed, your attorney will likely advise you not to make any unnecessary changes to the agreement simply because your ex is using their willingness to breach custody as a bargaining chip to get modifications in their favor. Rather, treat this as an opportunity to reach an amicable solution, in the full awareness that intervention by the courts and the police may still be on the table if required.
If one parent breaches a custody order, this can cause significant emotional, psychological, and practical disruption. In some instances, police intervention may well be necessary. However, it’s important to recognize that this is usually a last resort and should be pursued through your attorney and the courts unless your child is in imminent danger. Alternatively, you may find that mediation can help address any outstanding disagreements and get back on track to ensuring your child has healthy relationships with both parents.