One of the hardest questions to answer for a client is why a Court doesn’t enforce their own Orders. The next hardest questions to answer are if they found the other side in violation of litigant’s rights, (1) why weren’t there any real consequences for the violation of the order and (2) why didn’t I get counsel fees. The Court Rules suggest that a litigant is entitled to counsel fees if they are required to come to court to enforce an Order. In addition, the court rules in the family part also include numerous provisions, including the imposition of monetary sanctions and counsel fees, for violation of a parenting time (visitation) Order.
As such, it was interesting to see the unreported decision in the case of Friedman v. Friedman decided on March 7, 2011 wherein an awarded of sanctions for violating a parenting time order was affirmed by the Appellate Division. In this case, the father asserted that the mother violated the parties’ parenting schedule when she "signed both children out of school and drove them to [Virginia]." As a result, the father sought sanctions against the mother "for making unilateral changes" to the parenting schedule "and for failing to cooperate with the recommendations of the Parenting coordinator." The trial judge found that the mother violated the parties’ parenting schedule and the recommendations of the parent coordinator by extending "the children’s time with her, in Virginia." As a result, the mother was ordered ordered to pay the father $500.00 as a sanction plus reimburse him for his costs to file and serve the motion. The decision was based upon the court’s finding that the mother had a history of failing to cooperate with the plaintiff. In addition, the mother’s request to relieve the current parent coordinator was denied.
The Appellate Division affirmed noting that Rule 5:3-7(a) addresses violations of parenting time orders, and it authorizes the imposition of a monetary sanction when "a party has violated an order respecting custody or parenting time." The Court further noted that "The imposition of a reasonable monetary sanction is a ‘proper tool to compel compliance with a court order.’" Sanctions must not be excessive and moreover, they goal is to facilitate compliance with court orders.
This decision was refreshing because it provided an affirmative response to the concerns noted at the beginning of this piece. Very often, because there are conflicting certifications, and sometimes even when the facts are not particularly in dispute, when dealing with parenting violations, I have heard judges say, that they are not finding that someone actually committed the alleged act in violation of an order or agreement, but the parties were not ordered to do it in the future. May other times, I have seen judges find someone in violation of litigant’s rights (i.e. a finding that an Order was violated), with no sanctions and worse yet, no counsel fees. The result is often that the offending party is empowered because they have seen that there are no consequences to their actions. Moreover, the litigation becomes an economic penalty to the person seeking enforcement because they are not made whole for the counsel fees that they have to expend to get compliance. Sometimes, this causes the aggrieved party to just give up, feeling that the court will not protect them or do anything even when there are clear violations.
The other interesting, but smaller, point in this decision is with regard to the parent coordinator. In this case, the mother sought to get rid of the current parent coordinator and replace her with someone who would be "more effective." It is not unusual that a party who disagrees with the parent coordinator’s recommendations deems that PC to be ineffective. This is particularly so in cases where one party more than the other is repeatedly the problem with parenting issues and the parent coordinator repeatedly makes recommendations that do not favor that parent. That said, the parent coordinator process is not a panacea. It is supposed to be a means to help parties resolve disputes without having to go to court. However, if one party repeatedly refuses to comply with the parent coordinator’s recommendations, forcing litigation, the process actually becomes more time expensive and more time consuming for the other, perhaps "more reasonable" parent, who has to first deal with the PC and then has to go to Court anyway.