Modifications, Enforcements and Writs of Habeas Corpus

Family Law Articles

You have a court order, but the other parent does not abide by what is in that order. It can be extremely frustrating to have already gone through court and received court orders just to have the other parent simply do whatever they want, in spite of the court orders. Courts fully intend that their orders be followed, but courts do not know that the other parent is violating the court orders unless it is brought to the court’s attention. This is accomplished a couple of different ways, depending on the situation.

If the other parent does not let you have the child as it states in the court orders then a Petition for Writ of Habeas Corpus or a Modification, or both, may be necessary. If a parent is refusing to follow the court orders, then an enforcement may need to be filed. If something significant has changed for either of the parents or the child, it may be time to modify the court orders.

What is a Writ of Habeas Corpus and What is it Used for?

Habeas Corpus is Latin for “you have the body”. A Writ of Habeas Corpus is filed when a parent has possession of a child when the other parent is supposed to have legal possession of the child. Once the court issues a Writ of Habeas Corpus law enforcement can remove the child from the possession of the parent and give the child to the parent that was legally entitled to possession. Sometimes, make-up possession time is also ordered.

What is an Enforcement?

Enforcements are filed when a parent is not following the current court orders and you want the court to make him or her comply with the current court orders. This can literally be anything that the parent is ordered to do and is not doing. Depending on what is being violated, the Court has a number of ways to make a parent comply with what has been ordered. A court will not even know that the parent has been violating the current court orders unless you bring it before the court in an enforcement. Courts absolutely want people to comply with court orders, so courts have numerous effective ways to make people comply, depending on what the violation is. Sometimes you can even get an order for the parent that was violating the court orders to be required to reimburse you for the attorney fees you had to pay to bring the enforcement action.

How Do I Change the Court Orders?

A modification action is directed at permanently changing the orders based on a change of circumstances. When something changes for either parent, or for the child, the previous orders may no longer be in the child’s best interest. This can be true, whether it involves a parent not following the court orders or whether the change simply makes the current court orders unworkable or no longer in the best interest of the child. In the modification, a parent can request changes to custody (conservatorship), possession (visitation) and access to the child, or child support. While a modification can be based on any change that affects the parents or the child, sometimes that change is simply a parent’s willfully violating the current orders.

Some common reasons for filing a modification are:

• The child is now 12 years old and prefers to live with the other parent primarily.

• A parent’s repeated violation of current orders.

• A move or anticipated move of one of the parents.

• The child’s not doing well under the current court orders.

• Failure of a party to exercise their possession order.

• An increase or decrease in income which affect the child support obligation.

• An addiction that is affecting the safety of the child.

• A new mental health or physical health issue affects on of the parents or the child.

• A change in work schedules or travel with work.

• A new danger to the child is present.

• A new significant other or spouse has entered the child’s life and changes what is best for a child.

• Difficulty in co-parenting that affects the child.

• One family to the next, depending on the facts of their case

If any of these situations arise, or your court orders simply need to be revisited, your first step is to schedule a consultation with a knowledgeable child custody attorney. Call Robin R. Zegen today to schedule a consultation to evaluate your case and determine whether it is time to file a modification.