Custody Orders That Require Both Parties to Agree


Question: If my custody agreement states that a decision regarding my child should be made jointly with my ex-spouse and we cannot come to an agreement, can I hold my ex-spouse in contempt if he/she makes the decision without my permission?

Answer: Probably not, but there are other remedies available to resolve this issue. This question was answered recently in an Idaho Supreme Court case called Carr v. Pridgen. In this case, Mother and Father had a child together but were never married. Through the course of resolving their custody issues, they entered into a Parenting Plan which stated that all decisions related to where the minor child would attend school should be made jointly. Several years later, as the child was about to attend school, Mother and Father could not come to an agreement as to which school the minor child should attend. Mother and Father attempted mediation but it was unsuccessful. The parents were at an impasse. Because school had already begun, however, Mother enrolled the child in the school of her choice without the Father's permission. In response, Father filed a contempt motion in which he alleged that she had violated the court order by enrolling the child in a school without his authorization. The Court heard the motion and found Mother guilty of contempt and she was sentenced to five days jail, suspended, a $5,000 fine, suspended, and she was placed on two years unsupervised probation. The court held that because she had willfully violated the court order as to where her child should go to school, that it was appropriate to hold her in contempt. In response, Mother appealed, stating that she had no other option but to disobey the court order so that her child could attend school.

At issue on appeal was whether Mother was justified in her actions in putting her child in school, or whether Father could hold her in contempt for disobeying the court order. In answering this question, the Idaho Supreme Court ruled that the agreement could not be interpreted to mean that the child should not go to school until the parents could come to a decision. The court noted that it takes two people to enter into an agreement, and that the inability to enter into an agreement cannot be the grounds for contempt. In holding Mother in contempt in this case, the magistrate judge focused on the fact that Mother needed to have filed a motion before the court in order to resolve the conflict rather than make a unilateral decision. As a result, the magistrate judge stated that failure to file a motion to resolve the conflict was grounds for contempt. In reviewing this decision, the Idaho Supreme Court disagreed. Idaho law requires that before someone can be held in contempt for violating a court order, the order must command the person to either do something or not do something. In this case, the Parenting Agreement was silent as to what should happen if the parties could not agree. The Court determined that the magistrate could not hold Mother in contempt for failing to file a motion because that was not in the affidavit filed, she had not received notice, and there was no due process for the charge.

In summary, if you have an agreement where you and your ex-spouse must jointly make decisions, it is best to file a motion to have the judge resolve the dispute rather than taking action against the terms of the order. Contempt is likely not the proper remedy. If your ex-spouse has already taken action without your permission, it is best practice to consult an experienced family law attorney to who can assist you through the process.