Contempt is the intentional disobedience of a court order.
What can lead to Contempt?
Violating the residential time in a parenting plan or residential schedule might be contempt. Examples:
One parent refuses to allow visitation stated in the parenting plan, or one parent will not return the child to the other at the end of visitation, or one parent fails to make reasonable efforts to require a child to visit the other parent at the times stated in the parenting plan.
Contempt can happen by action (such as violating a restraining order) or by failure to act (such as not paying ordered child support or spousal maintenance).
You can also use contempt to force the other party to deliver property to you, if a court order required the delivery.
You can use contempt during a divorce, parentage, or third party custody action to enforce final orders from a court or an administrative agency. You can also use contempt to enforce temporary orders and restraining orders.
* Contempt is not available for all violations. Examples: you cannot use contempt to obtain property settlement payments, unless they are related to child support or maintenance. You cannot use contempt once a court order has ended or been modified.
Contempt is a severe remedy. You should not use it routinely. Contempt is also not always the best or most effective remedy. Sometimes it can just make conflict even worse. Courts hesitate to find a person in contempt unless the violation is serious.
What can the court do if it finds contempt?
The goal in this type of contempt action is to have the party follow the court order in the future. The court can order different remedies to achieve this. Here are some types of things the court can order:
Order the person in contempt to get counseling;
Order the person in contempt to complete a parenting class;
Order the person in contempt to look for work a certain number of hours a week.
The court can also order future hearings to check whether the person in contempt is now obeying the order.
For violation of a parenting plan, the court can also:
Order that one parent get more make-up residential time with the children;
Award attorney’s fees;
Order a civil penalty;
Order greater penalties for the second contempt violation within a short period of time;
If the judge believes the person in contempt probably won’t be able to obey the order in the future:
The court may tell the person to file a motion to modify (change) the court order so that they do not keep violating it.
The court can also enter a judgment for money due under the order (example: back child support).
The court can order jail time, only as a last resort and only to require someone to obey the court order, not to punish them.
* A contempt order usually specifies what action the person can take to purge (cure) the contempt.
What must I show to prove that contempt has occurred?
Before it can find a person in contempt, the court must find:
There is a valid court order in effect;
The other person knows about the court order;
The facts show a plain violation of the order;
Notice of the contempt hearing and a chance to be heard have been given and
Contempt is an appropriate remedy for the violation.
If the contempt is for a parenting plan violation;
there must be evidence that the violation was in bad faith OR
there must be evidence that the person violating the plan engaged in intentional misconduct OR
the court must find that prior sanctions haven’t led to compliance with the order.
The court assumes someone refuses to perform a duty in the parenting plan in bad faith. The law presumes you are able to obey the parenting plan. If you do not obey it, you must show:
you are unable to obey it or
you have a reasonable excuse.
How do I decide if contempt is appropriate in my case?
Think about these questions before you fill out the contempt forms:
Is the order still in effect? Some orders end at a specific date or when a final order is entered. You cannot use Contempt to enforce an order that has ended. (Exception: you can enforce a child support order through contempt even after the child becomes an adult.)
Does the other person know of the court order? Have you had the person served with a copy of it? If not, was that person present in court when the judge signed the order? If not, notice may not be sufficient. Without proper notice of an order, the court will not hear a contempt motion for violating it. (For restraining orders, having a law enforcement officer read a certified copy of the order to a person is considered notice of the order to that person.)
Have you met any responsibilities you might have yourself under the order to trigger the other person’s duty in the same area? Example: You get visitation only after you have completed a drug treatment program. Now you have asked for visitation and been refused. Have you completed the program ordered? Have you proven to the other party you completed it?
Does the order clearly describe the other person’s responsibilities? If not, contempt is not a realistic remedy until the court order is clarified or modified and until you can prove your case.
Do you expect the other person to deny their violation? If so, do you have enough proof of the violation? If you cannot show by your own or your witnesses’ first-hand knowledge that the other party violated the order, the court will not be able to find the other person in contempt.
Does the other person have a reasonable excuse for the violation? In most contempt cases concerning parenting plans or child support, once you have shown the order is valid and the other person knows of the order but has violated it, the other person must either show a reasonable excuse (for parenting plan violations) or show inability to obey despite reasonable efforts (child support and parenting plan cases). If the other party can do one of these, a contempt motion may just be a waste of time.
Is contempt the most suitable remedy? When someone fails to follow a court order, you might have other options. To know which action is most suitable in your case, you get legal advice about your situation.
What alternatives do I have to contempt?
They include:
Demand letter: Send the other party a letter explaining the violations. Ask him/her to correct them. (Keep a copy of the letter for your own records. Send it by regular and certified mail.)
A letter can sometimes lead to an agreed solution. It can also show that you are being reasonable. It can also help show that the other party knows of the court’s order and that you are unhappy with his/her behavior. Your letter should be specific, polite, and business-like.
Motion to Clarify: You can use this when a court order is vague or unclear. Example: when the order just says “reasonable visitation” and the parties disagree on what is reasonable.
Complaint/Motion to Modify: You can use this to ask the court to change a court order instead of asking the court to enforce an order.
Enforcement and collection: For many kinds of money, support, and property orders, collection actions such as wage assignment, garnishment, or foreclosure work better than contempt. In the case of child support you can get free collection services free from the Department of Revenue Child Support Division.
Dispute resolution: Many parenting plans contain an alternative procedure to court for you to try first if you disagree about the parenting plan. It may be required in your case. Read your court order to see.
Criminal prosecution: Only for very serious cases.
Even where contempt is available as a remedy, it costs a lot, the court may not want to do anything, and contempt is hard to prove.
What are the risks of filing for contempt?
It may be too risky in your case. Think about these possible problems before you decide to file for contempt.
Defending a modification motion. Sometimes filing a Motion for Contempt will cause the other party to file a motion to change the court order. Example: the other party may try to reduce child support or ask for different residential time. If you are not ready to spend time defending against this type of motion, do not file for contempt.
Defending a contempt motion. Have you obeyed the Court’s orders yourself? If not, the other party may respond to your motion for contempt by filing his/her own contempt motion against you. Or s/he may argue that your violation of the order prevents him/her from obeying it.
“Crying wolf.” Is the violation an important one? Courts do not like to hold a person in contempt for violation of a small item, even if it happens more than once.
Emotional cost. Going to court often creates hard feelings. It may also upset your children. It can also increase the risk of destructive conduct by the other party. Are these dangers in your case? Do you want to go forward anyway?
Risk of fees. In some cases the court can or must charge the losing party with fees. Example: in contempt for parenting plan violations, if the court finds you had no reasonable basis for the motion, it will order you to pay the other party’s attorney’s fees .