Question: My ex-wife and I had an ugly divorce in Doylestown, Bucks County, PA. We have 2 daughters, and my ex and I have shared physical custody. My ex is often late to custody exchanges. I have asked her politely via phone and text to let me know when she will be late or asked her to be on time. However, she always says it’s traffic or just does not respond to me. I understand that traffic can make her late, but almost every time? She is usually 10 to 15 minutes late, and there have been several times she has been late at least 30 minutes or more. I believe she is doing this to spite me and annoy me because we did not end on great terms. I tried to talk to her about this, but to no avail. My custodial time is shortened very often. I know 15 minutes is not a lot, but almost every time is ridiculous. Is there something I can do?
Answer: Like you said, there are going to be times when your ex will be late to a custody exchange due to circumstances out of her control, such as traffic. In such instances, it would be unreasonable to file a petition for contempt. Typically, Pennsylvania divorce and custody courts would consider this a “minor” issue and would want the parties to work it out themselves.
The other factor you would need to consider is if the custody order allows time for parties to be 15 minutes late. If so, then you really do not have recourse because the custody order allows it. However, if she is often more than 15 minutes late, you may then file a petition with the court.
If there is no provision in the custody order for parties to be 15 minutes late, and you think she is doing it out of spite, you may file a petition for contempt and modification of the current custody order. It is very unlikely the Court will hold her in contempt unless she is consistently late and late for more than 15 minutes each time. You should be aware though, the Courts expect parties in a custody dispute to work together as much as possible and work out minor issues themselves. It would paint you as unreasonable if you file a petition for contempt for her being 15 minutes late only a handful of times over the course of a few months.
If she is consistently late, you should start documenting the times that she is late and how many minutes she is late. You should send her emails or texts politely asking her to be on time. If she doesn’t not respond, that only works in your favor. Make sure you print those emails or texts and store them in a safe place. We have had clients lose years of texts or emails lost due to losing or damaging a phone or computer, so keep a backup.
If the Court finds she intentionally disobeyed the custody order, the court can take away custody time from your ex or let you have make up time. The court may also modify the custody order in your favor, fine her and/or make her pay reasonable attorney fees and expenses you incurred to file the petition.