My Ex Won’t Follow the Custody Order. What Can I Do in Oklahoma?

Is your ex ignoring the custody order, or has the order stopped working? In Oklahoma those are two different problems with two different fixes.

When people come to me upset about a custody order, the first thing they usually say is that the other parent is violating it. Sometimes that’s true. Often it isn’t quite the problem.

There are two different questions. Is someone not following the order as it is written? Or does the order need to change because circumstances are different? The first is enforcement. The second is modification. Which one you have decides what you file, what you have to prove, and what you risk. So it’s worth sorting out before you do anything else.

Two problems that look alike

Suppose you and your ex share custody of your 9-year-old, week on and week off.

In the first version, your ex keeps your child for an extra weekend, then another, and stops answering when you ask for the exchange. The order says one thing. Your ex is doing another. That is an enforcement problem.

In the second version, your ex follows the schedule exactly. But your child misses school during your ex’s weeks, comes back without homework done, and tells you about constant fighting in the house. Nothing in the order is being broken. The order just isn’t working. That is a modification problem.

People tend to call both of these “violations.” A judge won’t.

Enforcing the order

If the other parent isn’t doing what the order says, you can file a motion to enforce. You are asking the judge to make the other parent follow the order, and you can ask for specifics that make it harder to dodge.

There is a risk that people don’t expect. If the judge grants your motion, the judge can order the other parent to pay your attorney fees. If the judge denies it, you may be ordered to pay theirs. So a motion to enforce needs to be strong, not just justified.

Sometimes the real problem is that the order is too vague to enforce. If it doesn’t say which days, what times, or where the exchange happens, there are too many details for people to get caught up on. In that case you can ask the judge to clarify the order and spell those details out. It’s less aggressive and carries less risk. It’s also slower, and it doesn’t punish anyone.

There are times when the other side is knowingly violating the court order. This might be failing to return the child on time, or exposing the child to a romantic partner or someone with whom the current order restricts contact. In this case you may chose to ask the judge to hold the other side in contempt. This process looks involves submitting an application to the court and having the court summon the alleged offender to answer as to the charges. This process can be slower than a motion to enforce, and because a judge has the option to punish the offender by sending them to jail, this process accords the accused a lot more legal protections. However, it can be highly effective in getting the non-complying party to follow the order.

Whichever route you take, doing nothing is also a choice. If the other parent is keeping your child from you, waiting guarantees the result.

Modifying the order

Custody, visitation, and support orders can be changed. The standard that the court uses for a modification depends on how big the modification is going to be. If we are just changing something small such as a visitation schedule then the court can do so if there has been a change in circumstances and it would be in the child’s best interest to change the order. However, if you are asking for a large change such as changing which parent the child lives with then the law requires that you should that there has been a permanent, material, and substantial change of circumstances and that the child would be substantially better off if custody were going to be changed. The latter standard also requires that the change of circumstances must be in the home of the parent who currently has primary physical custody.

What people get wrong is what the judge is actually asking. The judge doesn’t ask whether you like the other parent’s new partner, or whether you think they are a good stepparent. The judge asks whether the situation is affecting your child, how, and what needs to change so it doesn’t.

That last part matters, because the answer doesn’t always mean less time for the other parent. The fix should match the problem. If your child isn’t getting to school during the other parent’s time, one solution is less of that parent’s time during the school week. If the problem is who is living in the house, the fix might be a rule about that. If the two of you can no longer cooperate on anything, it may be time to end joint custody altogether. Oklahoma allows that when the plan is no longer in the child’s best interests. 43 O.S. § 109.

The real work in a modification case is figuring out what needs to change and whether the circumstances truly justify it. That is also how I look at it with a client. Not what they want, but what the judge is likely to do with the facts we can prove.

What might persuade a judge depends on the judge’s personality and experience. In each case, we have to look at past experience with the judge and what I may know about that judge’s preferences. We then try to emphasize the facts and circumstances that will be most persuasive to that judge.

What to do first

Read your order and parenting plan. If you think the other parent is violating it, find the exact paragraph. If you can’t point to one, you are probably looking at modification.

Check whether your joint custody plan has a dispute resolution procedure, and use it. Then try to talk to the other parent directly. If they won’t engage, you are left with two choices. Decide it isn’t a big enough deal and live with it, or treat it as a real dispute and take it to the judge.

Keep a record either way: dates, missed exchanges, school absences, messages. It is tedious. It is also usually what decides the case.

Figure out which problem you have before you decide what to file. If you’re not sure, that’s a good question to bring to a consultation.