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If my Ex-wife isn't following custody agreement by refusing to share burden of transportation, what are my rights?

Hackensack, NJ |

We have joint legal custody, and have an agreement that clearly states, "if one or both parties move, the burden of transportation will be shared by both parties." My ex-wife has since moved to another county and refuses to share transportation. I have offered her many options, been flexible and firm, but she is still ignoring the requests.

This clause was included in our agreement as a safeguard because my job doesn't allow much flexibility with my hours, and because I knew if it became an issue she'd refuse, and it would interfere with parenting time. Now that she is choosing to arbitrarily ignore our agreement, how can I get her to follow it, so that we share the burden of transport equitably as outlined in our divorce agreement?

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Attorney answers 3

Best Answer
Posted

You could file a motion and ask a judge to address it or to refer you to mediation to address and, pending mediation, to order an interim solution.

You could also pick up the kids and let her know via text that they'll be available for her to pick up at X ' Clock as per the arrangement, that they'll be ready for her to pick up, but that you won't be driving them back? It'd a little aggressive, but it might prompt a conversation, and she can't claim you interfered with the order if it says to share transportation and she's refusing to do s.

IF YOU LIKE THIS ANSWER AND APPRECIATE THE TIME IT TOOK TO WRITE IT, PLEASE SELECT IT AS "BEST ANSWER." Thanks. The above is said without seeing your case file and without my understanding the entirety of the facts of your case. Depending on those facts, the above information be may incomplete or may be completely inaccurate. The above is intended as general information only based on what you described and not as legal advice. I advise you to consult with counsel who may be able to provide better information commensurate with a better understanding of your situation.

David Perry Davis

David Perry Davis

Posted

Above assumes that she's ABLE to share the driving.... she has a license, car, gas for it, etc. If not, it's a little more complex, but if we're talking about a long drive, you should at least have gas reimbursed (if not IRS mileage charge) reimbursed if you're doing all the driving.

Asker

Posted

Article IV Section 3C of our agreement states "At such time either party moves from their current residence, the parties shall share transportation for parenting time." I now spend approximately an hour traveling to them, and an hour back to my residence, 2x week for a 2-hour dinner visit and every other weekend the same, 4 hours back and forth. Realizing that she might move anywhere, and knowing my work day can end only at 4 the earliest (and that's pushing it!) I wanted to make sure we had a safeguard in our agreement in case this happened. Can she arbitrarily just chose to ignore it? I have been through mediation before, and I am fearful of spending a huge sum of money again, and getting nowhere. However, I cannot continue to commute like this and maintain my sanity, as I cannot afford to spend 3-4 hours/day in the car and still keep up on my workload. If I do take her to court, what are my odds of getting a ruling in my favor? I don't think that after two parties came to an agreement, one should ever allow the other party to just decide they don't want to follow it, but I have lost a bit of faith in the judicial system. I want her to uphold her end of the bargain, as I always have. I want to be able to have a meal with my kids that isn't rushed, or isn't ridden with stress because we have nowhere to go but drive around until drop off time because she now lives so far. I want to get back my parenting time, and once again be able to enjoy it. I have offered to pick the up, or drop them off, and told her she could choose which one. I've offered keeping them longer so she can extend work hours, or studying time. I've offered to meet her half way. She either ignores my emails and texts or says flat out no. I need guidance in order to resolve this as I fear this is the first of many episodes where she is trying to disregard our agreements, as she has also made several attempts to alienate me from my kids… but that's a whole other nightmare…. I truly appreciate your help! I now spend approximentaly an hour travelling to them, and an hour back to my residence, 2x week for a 2-hour dinner visit and every other weekend the same, 4 hours back and forth. Realizing that she might move anywhere, and knowing my work day can end only at 4 the earliest (and that's pushing it!) I wanted to make sure we had a safe-gaurd in our agreement in case this happened. Can she arbitrairly just chose to ignore it?

Posted

The most common tool available to litigants seeking to enforce a Court Order is a Motion to Enforce Litigant's Rights, set forth in Rule 1:10-3, “relief to litigant.”

1:10-3. Relief to Litigant
Notwithstanding that an act or omission may also constitute a contempt of court, a litigant in any action may seek relief by application in the action. A judge shall not be disqualified because he or she signed the order sought to be enforced. If an order entered on such an application provides for commitment, it shall specify the terms of release provided, however, that no order for commitment shall be entered to enforce a judgment or order exclusively for the payment of money, except for orders and judgments based on a claim for equitable relief including orders and judgments of the Family Part and except if a judgment creditor demonstrates to the court that the judgment debtor has assets that have been secreted or otherwise placed beyond the reach of execution. The court in its discretion may make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule. In family actions, the court may also grant additional remedies as provided by R. 5:3-7. An application by a litigant may be tried with a proceeding under R. 1:10-2(a) only with the consent of all parties and subject to the provisions of R. 1:10-2(c).

You should document the communications that you sent to your ex-wife wherein you directed her to the applicable provision of your agreement and requested that she comply. Once you have done that, you can file a Notice of Motion to Enforce Litigant's Rights. If you use an attorney, they can request counsel fees from your ex-wife on your behalf. If your agreement is clearly worded in your favor, you may be able to argue this motion on your own, pro se (without being represented by counsel). Unless you're an attorney, you won't be able to collect counsel fees for such a motion. Also, your case may be more complicated than you have suggested, justifying the need to hire counsel. I typically recommend consulting with a lawyer before one chooses to represent oneself in Court.

Mr. Murray's response is NOT legal advice and does NOT create an attorney-client relationship. You should NOT rely on this response. Mr. Murray's response was generated without conducting a full inquiry as would occur during a face to face attorney-client consultation. It is likely that the response above may be made less accurate, or become entirely inaccurate, as you, i.e. the questioner, disclose additional facts that should only be discussed during a private consultation with an attorney. I strongly recommend that you consult an attorney who is licensed to practice law in your state, whereupon all relevant facts will be discussed. All responses posted by Mr. Murray on Avvo.com are intended as general information for the education of the public, and not for any specific individual.

Asker

Posted

Article IV Section 3C of our agreement states "At such time either party moves from their current residence, the parties shall share transportation for parenting time." I now spend approximately an hour traveling to them, and an hour back to my residence, 2x week for a 2-hour dinner visit and every other weekend the same, 4 hours back and forth. Realizing that she might move anywhere, and knowing my work day can end only at 4 the earliest (and that's pushing it!) I wanted to make sure we had a safeguard in our agreement in case this happened. Can she arbitrarily just chose to ignore it? I have been through mediation before, and I am fearful of spending a huge sum of money again, and getting nowhere. However, I cannot continue to commute like this and maintain my sanity, as I cannot afford to spend 3-4 hours/day in the car and still keep up on my workload. If I do take her to court, what are my odds of getting a ruling in my favor? I don't think that after two parties came to an agreement, one should ever allow the other party to just decide they don't want to follow it, but I have lost a bit of faith in the judicial system. I want her to uphold her end of the bargain, as I always have. I want to be able to have a meal with my kids that isn't rushed, or isn't ridden with stress because we have nowhere to go but drive around until drop off time because she now lives so far. I want to get back my parenting time, and once again be able to enjoy it. I have offered to pick the up, or drop them off, and told her she could choose which one. I've offered keeping them longer so she can extend work hours, or studying time. I've offered to meet her half way. She either ignores my emails and texts or says flat out no. I need guidance in order to resolve this as I fear this is the first of many episodes where she is trying to disregard our agreements, as she has also made several attempts to alienate me from my kids… but that's a whole other nightmare…. I truly appreciate your help! I now spend approximentaly an hour travelling to them, and an hour back to my residence, 2x week for a 2-hour dinner visit and every other weekend the same, 4 hours back and forth. Realizing that she might move anywhere, and knowing my work day can end only at 4 the earliest (and that's pushing it!) I wanted to make sure we had a safe-gaurd in our agreement in case this happened. Can she arbitrairly just chose to ignore it?

Dean P Murray

Dean P Murray

Posted

Mediation depends on willingness to cooperate. If she's not willing to cooperate, you're wasting time and money. I think the language you excerpted from your agreement is explicit. My suggestion: file a Notice of Motion to Enforce Litigant's Rights. Here is the pro se packet: http://www.judiciary.state.nj.us/prose/10483_post_jdg_kit.pdf. (Read it carefully). If she opposes it with valid reasons and you have second thoughts, you can always ask the Court to adjourn or "carry" your motion by a few weeks and "lawyer up". The Court shouldn't deny your request. Alternatively, you can file a reply to her opposition, then argue your position in Court as best as you can. If you lose, you can subsequently hire a lawyer and ask him/her to file a "notice of motion for reconsideration". So there are multiple ways to correct things if you try on your own and lose. If you read the pro se packet and understand it, I would give it a shot. The Court may not even need to grant oral argument, which means you would not even have to go to Court. Be sure to be clear about what relief you want though. If you don't tell the Court what you want, they won't know how to help you. Be specific.

Dean P Murray

Dean P Murray

Posted

Oh, a very important caveat: a motion for reconsideration must be filed within 20 days of the service of the Order by the party obtaining it. See http://www.judiciary.state.nj.us/rules/r4-49.htm. So if want to try arguing your motion yourself, I would be ready to hit the ground running with an attorney as soon as the Court decides the motion.

Dean P Murray

Dean P Murray

Posted

I realize that last post may not have been clear. For clarity, I will say it another way. IF you LOSE your motion, you may have only 20 days to file a motion for reconsideration. That means that if you wait until you lose, then start looking around for a lawyer, the clock has started ticking. You have to retain the lawyer, they have to prepare papers and file them within the 20 day period, which CANNOT be enlarged. So have a lawyer in mind so that all you have to do upon losing (which I hope doesn't happen) is to retain them and have them file a motion. Just don't start shopping for a lawyer only after you lose in Court. Hope that was clear.

Asker

Posted

Thank you so much for taking the time out to respond, it's a great help and truly appreciated it. I will look at the paperwork now. Thanks!

Posted

You need to file a motion to enforce the agreement. You can find the forms at NJCourtsonline.

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