Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)

Family Access Motions Enforce Custody Orders, But Older Kids Often Live Where They Want

Recently, a reader wrote:


I share joint custody of my kids, 16 and 20. My ex talked my son into moving in with him and I only see him on weekends. Since then, my son’s grades are failing, his attitude with me has deteriorated and recently he snuck to a party and was drinking. My ex was convicted of 3 felony DWIs and recently for passing bad checks. When trying to discuss parenting with him, I am shut out. What can I do?


Dear Reader: You have options for forcing your ex-spouse to comply with the custody order, but I must caution you that your 16 year old is at an age where he will likely exercise his own judgment about where he will live and could decide to remain with his dad. Should this occur, there is little the court can do to force him to stay with you.


Hopefully, that will not happen here, but the next steps I recommend include counseling to assist everyone involved in reestablishing and valuing a family unit that includes both parents as full time participants.


You should immediately send a letter to your former husband by both regular and certified mail, return receipt requested. In that letter, notify your husband that you intend to exercise all the time with your son that was awarded you in the parenting plan approved at your divorce, and ask his assistance and cooperation in making this happen. From reading your email, I surmise that you have accepted this situation for a while. Your letter serves notice that you are reasserting your rights.


Importantly, you should identify the next date and time in your parenting plan for your son to be with you and demand that your ex-husband comply, including delivering your son if that’s what the plan requires.


Should that not happen, the next step would be filing a Family Access Motion in the county where you were divorced. A form is available at the courthouse and you should not need a lawyer to complete it. In that motion, ask for the following:

·        Compensatory time for the time missed with your son.

·        That your ex be fined $500 (the maximum) for failing to follow the original parenting plan.

·        And, that your ex be required to post a forfeitable bond to insure his future compliance.

·        That the court appoint an attorney to represent your son’s interests.

·        Court-ordered counseling for both parents and the son to assist your son in reestablishing his relationship with his mother, as well as to identify and address any possible substance abuse or other issues.

·        Court-ordered counseling for your ex to assist him in understanding the importance to your son of a continuing and meaningful relationship with both parents.

·        That your ex pay all reasonable expenses that have been incurred from his failure to comply with the parenting plan, or may incur from any future failure to comply, including counseling and attorney’s fees and court costs


Also, you may want to consider filing a motion to modify your existing custody order so that you’re awarded sufficient on-going time with your son to offset the negative influences of the father. The court would likely support a schedule that had the son living full time with you, except for every other weekend and two weeks in the summer with his father. However, you will need an attorney to assist you.


If your ex continues to withhold your son, you could file a contempt motion and this would also require a lawyer. Or, you could ask the police in the county where you were divorced to issue a felony arrest warrant against your ex for depriving you of the time allotted under the original parenting plan.


Please know that I understand what you are going through. It happened to me with my ex and my son.