Dealing with Difficult Exes? Get Them Charged with Contempt.
April 15, 2016
Tags: Contempt, court order, Divorce, Separated
Filed in: Child Custody, Child Support, Divorce, Family Law
Written by Ryan E. Weese
In the practice of family law, coming to a final resolution represents only part of the battle. So many times clients will ask, “How do I make sure my ex follows through with our agreement?”, “My ex hasn’t followed any of our agreements so far, he’s only going to follow a court order.”, and “How can I ensure she lets me have the kids for my court ordered time with the children?”.
These clients all crave certainty and finality to their dispute. No attorney can guarantee 100% compliance with a court order, but we do have remedies for non-compliance. That remedy comes in the form of “contempt” — more legally referred to as an Application for Order for Rule to Show Cause.
Let’s take a custody case as an example. Mom and Dad enter into a final stipulation setting forth the custody, visitation and support provisions regarding their children. The stipulation becomes a court order by way of a final decree. We now have the law of the case established. But, one of the parties fails to abide by the terms of the decree. That violation could be for a number of things- failure to pay child support; failure to provide the non-custodial parent with visitation; failure to return the children timely, etc.
To find a party in contempt, a court must set the matter for a hearing and determine, after taking testimony and receiving exhibits, whether or not a party failed to comply with a court order, had a duty to obey the court order, and willfully failed to perform that duty. This process is what’s referred to as quasi-criminal so the constitutional provisions that protect those alleged of committing a crime apply. A person alleged to be in contempt most likely has the right to be advised of the charges against him; be given an opportunity to defend themselves; be represented by counsel; and to testify and call witnesses in their defense. The person seeking to prove the contempt must meet the high burden of proof of beyond a reasonable doubt. The alleged violator’s behavior must be willful, intentional and deliberate. Accidental, or behavior out of the contemnor’s control, probably won’t suffice for a finding of contempt
The court has many punishments available, should it find an individual in contempt. Those remedies include punitive sanctions such as a thirty (30) day jail sentence for each offense, the payment of attorney fees, the equivalent of a modification of the current order, and the ability to generally make the victim whole. These are powerful tools the court can utilize depending on the nature of the violation, the severity of the conduct, and the necessity to correct the contemnor’s behavior.
Although contempt proceedings are never a slam-dunk, when a party violates an order of the court, the court has an interest in upholding its own orders. A judge doesn’t enter orders believing individuals are free to disregard their mandate. When appropriate under the law, courts will enforce their orders and punish those who willfully disobey.
