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.
Author: Andrew B. Howie
1. Filing Taxes? Double-check your marital status.
Here’s a good tax-season tip — if you have a divorce case pending, how you file your income tax returns is based on your marital status on December 31 the previous year. For example, for tax year 2015 (federal returns due April 18, 2016), your filing status (married filing jointly, married filing separately, single, or head-of-household) depends on whether you were married at 11:59 p.m., December 31, 2015. Be sure to bring this to the attention of your tax preparer. If your divorce is pending, the court can force you to refile under a different status if you’re not careful which means owing more in taxes or giving back that refund.
2. Think before you text…or post…or email
Always presume that your ex (and inevitably a judge) will discover (no matter how tight your passwords or privacy settings are) every photo, voicemail, email, text message, or social media posting that is from you, includes you, or is about you. Never leave a voicemail message for anyone after you’ve been drinking (or even if you’re sober for that matter) that you do not want played in court for a judge to hear.
3. Don’t ditch those divorce papers
If you are served with divorce papers, do not ignore them. Each jurisdiction has a deadline to formally respond a petition for divorce. If you are served and fail to timely respond in a timely manner, your soon-to-be-ex can obtain a default divorce judgment against you and receive virtually anything and everything he or she asks for.
4. Discussing your ex? Watch your language.
Anything you say to another person about your ex may be used in court against you in your divorce case. No matter how frustrated you are, never threaten your ex or talk badly about him or her to or near your children.
5. Keep your kids involved in your ex’s life.
Don’t try to remove your ex from your children’s lives, even in small ways. Subtle actions can be used to build a case against you receiving custody. For example:
- Hiding all photos of your ex and your kids.
- Denying or limiting agreed-upon opportunities for your children to talk to or interact with your ex.
- Loading your kids’ schedules with extracurricular activities, then claiming that they’re too busy to visit your ex.
The key exception in these situations is if direct physical harm or significant emotional harm to your child or yourself will likely result from such contact with your ex. Remember, judges hear in virtually every case, “my ex is crazy” or “my ex is verbally abusive”. Those claims only influence the judge if there is clear evidence of direct harm to a child or yourself. In other words, “sticks and stones may break my bones, but words don’t hurt me” holds true in divorce cases.
Author: Tara L. Hofbauer
“Ugh. Why can’t he just leave us alone? K would be better off without him!! –feeling frustrated.”
“That’s it. Thank you to everyone who has ever been supportive of me throughout the years. Ya’ll are good people. But, I can’t take it anymore. She won’t even let me see the kids. I have nothing left to live for…..”
“Kids are driving me nuts today! WHY CAN’T THEY GET ALONG? I think it’s an ‘entire-box-of-wine’ kind of night for this girl!!”
These phrases likely look familiar to most of you. If they don’t, it is possible that you haven’t been sucked into the vortex of Facebook’s oversharing, in which case, read no further, you rebel against social media! You are not the intended audience. It is also possible you did not recognize these as Facebook status updates because they contained proper grammar and spelling. Many such outbursts are unintelligible. They are typed out on smart phones with fat, angry fingers and subject to the whims of auto correct. They are expressed in the heat of the moment. They are non-edited, verbal hemorrhages—a way to vent to 500 of your closest friends. In any case, these very public streams of consciousness can end up costing you your children. Iowa courts are routinely considering parties’ Facebook timelines, pictures, “likes”, and private messages as fair game in custody battles. In fact, one of the first things I do after meeting with a client for the first time, is to check the Facebook pages of both parties. This is because I know they often contain a goldmine of evidence—either good or bad.
It is probable that your soon-to-be-ex will be privy to any and all eruptions you spew onto Facebook. Even more troubling, however, is that your own children may have access. Most judicial districts in the state of Iowa require parties to attend a “Children in the Middle” class when children are at issue in a family law case. The purpose of such a class—avoiding putting your children in the middle of your disputes—may seem like common sense. Facebook statuses such as the first two in this post, however, showcase people’s very strong urge and emotional need to do exactly the opposite of what these courses teach. People need validation for their feelings. Is there any quicker way to receive such validation than to turn your internet friends?
In the first status update, lies a classic example of parental alienation. We do not know how old “K” is, but the internet never forgets. “K” is very likely to see this post at some point, even if she cannot search the internet in her current toddler state. Any judge who reads this as evidence at trial, is likely to consider the possible alienating effects this post could have between “K” and her father. This mom may be constructing a breeding ground of negativity between the child and her father. While this post in isolation would not lose this mother custody of her child, it very well could be considered in the bigger picture.
The second status update is not only alienating in nature, but it is quite telling of the poster’s mental state. I have seen numerous instances of veiled threats of suicide due to the other parties’ refusal to allow contact with the children—whether real or perceived. While many of these threats are empty, this is hopefully not something a judge would take lightly. You are declaring yourself an unfit parent to the whole world by posting something like this. Be wary of what you put in writing while you are going through a custody battle. Whether you were serious or not, the courts can and should take it seriously.
Finally, while the last status update example is light-hearted, be careful of these posts as well. An ambitious party could use this as evidence that either you are a parent who cannot control her children or that you drink too much while the children are in your care. The poster surely did not intend to portray either of these scenarios. Enterprising internet police (i.e. opposing parties and their allies) will do all they can to twist these light-hearted posts into further advancing their custodial agendas.
The persona you present on Facebook could be the very picture that is painted of you at trial. Are you the sum of your status updates? Hopefully not. Your goal should be to avoid helping the other party gather evidence to use against you. Do not hand it to them on a silver Facebook platter. If you are unsure whether to post, do not post. Silence is pure gold when it comes to social media and custody.