Friday, July 25, 2014

Orders Are Not Magic Wands

This issue has been popping up a lot lately with my clients, clinic clients and in talks with other attorneys.   So I thought I would write about it in so I can just print it off and save my vocal cords.   

If you are involved in family law litigation there is a reason for the litigation.   A relationship is breaking up.   Sometimes it is just two people deciding they are not comptatible.   But those cases mostly don't involve litigation.   They work out an agreement and a hearing is only necessary to formalize the agreement in an order or, in Maryland, the divorce requires a final hearing with testimony even if uncontested.   I'm talking about the ones where there is a not so amicable break up of the relationship.   

What I've been hearing lately is "I've got the Order requiring the other person to do something and they aren't doing it."    Sure you can file for contempt if you want, but if the person doesn't really want to do it, you are going to be in court A LOT until the Court finally gets irked enough at the behavior to throw the person in jail for contempt.   Basically, an Order tells someone what to do, but it doesn't change who  that person is fundamentally.    

Some examples:

If the other parent skips for job to job, has long periods of unemployment, was irresponsible about paying bills that sort of thing, a Child Support Order is not going to make the person go "Oh wait, I am required to financially support my child, I better get and keep a job."   If the parent was a deadbeat before the Order, they are going to be a deadbeat after the Order.   That parent will not suddenly become financially responsible.   What I get with this is "Why doesn't he/she pay the child support.   It's an Order."   The answer usually is "If they were going to pay it, even if unemployed they would be paying what they could."  

The above goes for alimony too.   If the person wanted to pay alimony, there wouldn't have been a fight over it.   And some people are just hopeless with money.    An Order will not suddenly make them manage their money better.   If they didn't pay their bills on time before and always faced late fees, guess what is going to happen when it comes to paying you?   Sure you can judgments for nonpayment of alimony and child support.   But if the person has no money and no job, what good is a judgment?   Or as I say "judgments make lovely wallpaper."

If the other parent never went to school functions, doctor's appointment, kid's sports games, or even wanted to spend time with the child, a Custody Order will not transform him/her into parent of the year.   Really, it won't.   If the parent always wanted to go out partying with friends on weekends rather than do stuff with the kids, that is not going to change just because that parent has the kids every other weekend.   A bad parent will just be a bad parent with a Custody Order.   Here you can't even get Contempt.   The court is not, I repeat, not going to order the other parent to take the kids if the parent really doesn't want to take the little angels.   It is not in the kids' best interest for that parent to be forced to take the kids, only to have them ignored.

If the other parent always puts the kids in the middle during the ltigation and played mind games with the kids, same thing will happen with the Custody Order.   You can have an Order that says don't mentally abuse the kids, don't talk about the other parent in front of the kids, etc.   Guess what?   They don't care.   They really don't.   They do not care how much that hurts the kids.   If they cared, they wouldn't do it in the first place.   Here, if the problem persists long enough, you might be able to get custody changed so the kids spend less time around that parent.   But the kids are still going to spend some amount of time with that parent.  The parent will just have fewer opportunities to expose the kids to the behavior.   Also, how do you prove it to the court?   "Oh the kids will tell me what is going."    Can you say "hearsay?"   I thought you could.   Yep, anything the kids tell you is not admissible.   And you are not going to the parent who forces the kids to come to court to talk about the situation.    Not unless it is an extreme case.   Because if you do, guess who is putting the kids in the middle now?   So all you got is hearsay.   The court might admonish the other parent but that is about it.   The behavior is unlikely to change until the other parent wants it to change.

In summary, you can get the Order, but don't expect miracles.   I am not saying don't try to enforce Orders but be realistic about what the court can do.   The court cannot magically transform someones personality (from the conversations I have had with masters and judges, they wish they could sometimes).   You have to accept these limitations and decide if trying to force the other parent to change is worth your time, effort and money to pay an attorney to be constantly going after the other parent.