As a family law lawyer, I am always surprised how casually some parents take a parenting plan. We hear a lot of stories about the other parent disregarding terms of the parenting plan. We hear complaints of the other parent returning the children late, failing to return items of clothing, or denying holiday or summer parenting time. Failure to comply with parenting time orders can carry serious consequences if the other parent takes enforcement action after a willful violation of the parenting plan. One of the most serious enforcement remedies available for parenting plan violations is “contempt of court.” Parenting time orders are orders made by the court with the court’s authority. Willful disobedience of, resistance to, or obstruction of the court’s authority, process, order, or judgment is subject to a contempt motion.
Private attorneys and parties can bring “remedial” contempt actions for willful parenting plan violations. A remedial action is the court using its authority to remedy, or fix the non-compliance. A broad range of sanctions are available to get a parent to comply with the parenting plan. ORS 33.105 specifies what sanctions are available in a contempt action. Unless there is a contrary statute, the court can impose one or more of the following remedial sanctions:
- Payment of a sum of money sufficient to compensate a party for loss, injury or costs suffered by the party as the result of a contempt of court.
- Confinement for so long as the contempt continues, or six months, whichever is the shorter period.
- An amount not to exceed $500 or one percent of the defendant’s annual gross income, whichever is greater, for each day the contempt of court continues. The sanction imposed under this paragraph may be imposed as a fine or to compensate a party for the effects of the continuing contempt.
- An order designed to insure compliance with a prior order of the court, including probation.
- Payment of all or part of any attorney fees incurred by a party as the result of a contempt of court.
- A sanction other than the sanctions specified in paragraphs (a) to (e) of this subsection if the court determines that the sanction would be an effective remedy for the contempt.
Basically the court has the power to craft any remedy, including jail, to encourage compliance with a court order.
Liability for contempt can extend even beyond the parties. Third parties that interfere with parenting time orders may be held accountable through contempt.
What to do to avoid a contempt action? When your case is complete, get and retain a copy of your parenting plan. Read it. Know what it says. If you can, communicate with the other parent about parenting time to make sure you are on the same page. If you want to change the parenting plan and the other parent agrees, confirm the agreement in writing or email. Don’t unilaterally disregard the parenting plan. What to do if you are served with a contempt action? Talk to an experienced family law lawyer and get help. What to do if the other parent won’t follow the parenting plan? Talk to an experienced family law lawyer about what remedies you may have.
.bmp.jpg){kind=logo}
{ 24 comments… read them below or add one }
my name is david and my mother inlaw is not following the court order it states in ther that my visits are to be in her home and she dicide with the lawyer to do a thirdparty visitation center with out taking it back to court and she has olso told me tomany excuses why i cant go and see my daughter so what can i do and is there any thing i can do to get my daughter home in my and my wife custody
Can the parent that needs to force the other parent violating the parenting order of the judge file the contempt charge on their own and what forms do they need?
Thank You
Mary
Mary:
While using a lawyer can be of great help on a family law case, there is no requirement that you use one. Many counties have facilitators that can help unrepresented parties with forms. The facilitators however cannot provide legal advice.
What if you have an attorney, have a court date set to modify parenting plan, and feel there is abuse going on. My child is terrified now to go with his father. He screams and cries and hangs on to me for dear life. My child is 3 1/2 years old. He never use to be this way. He tells all of us that his dad’s girlfriend and kids are mean to him. What do I do. I can’t wait for court date?? help and desperate!
Kristi:
You should talk to your lawyer immediately to see if there are other legal options available before your current court date.
My Attorney is on vacation until 12-14….my court date is 12-15. I am now in contempt of court, because I refused to allow my son to go with his father on his court set days. My son was crying so hard that he vomitted and wet his pants because he didn’t want to go. My son is scared to death. Do you have any advice before my attorney gets back.
I am curious, is it considered a violation of the parenting plan if the parent refuses to take the child at all? The custody is split 50/50, yet phone calls and trying to schedule any time with the other parent is a nightmare. They are avoiding any conversation related to taking the child. This has resulted in increased costs for daycare for the child and more a financial burden on myself. I do not want child support I actually want them to spend time with the child, but I am not sure what to make sure that it happens or begin recieving child support if they still refuse time with the child.
Thank you
My children are 15 and 17. Our parenting plan has never been followed seriously for 7 years, allowing flexibility for all. Now, after several very negative situations, the kids no longer want to stay with their dad. They want to live at one house and just spend other quality time with their father. Am I in contempt if I do not force them to go?
There are potentially serious consequences for not following a parenting plan, including fines, paying the other side’s legal fees, and even jail time. If you want to change the parenting plan and the other parent will not do it voluntarily, or in mediation, modifying the plan is your best option. While an older child’s refusal to go for parenting time may be a defense to a contempt action, you should consult with an experienced family law attorney about your options, and in the iterim follow the parenting plan until it gets changed.
A party only violates the parenting plan if they refuse to follow the plan. Where the other parent refuses to exercise his/her parenting time, the other parent is not engaging in behavior that will subject he/she to contempt or enforcement of parenting time sanctions. In your situation, you also cannot file a motion for enforcement of parenting plan claiming that they are violating the parenting plan by not exercising their time. The better method would be to proceed with a modification of the parenting plan and support figures to both properly mirror real life and to provide you with more funds to take care of the child.
Angela – I am in the same situation as you and have been heavily researching my options on Contempt of Court charges as well as Parenting Time Enforcement options. If you look at http://courts.oregon.gov/OJD/docs/OSCA/cpsd/courtimprovement/familylaw/ParentingPlanEnforcement-BROCHURE-2000.pdf pay attention to question number 22. It indicates that either parent may go through this procedure, you just have to prove that it is “substantial.” Here are the instructions: http://www.oregon.gov/OJD/docs/OSCA/cpsd/courtimprovement/familylaw/umaenforcementinstructions.pdf. And the forms are here: http://www.ojd.state.or.us/lan/documents/Packet%205A07.pdf.
My daughters father stopped seeing her almost a year ago. I have been pleaing with him and his wife to keep their time, but they refuse. They recently had a baby and have lost interest. My daughter wants to see her father, but he gives every excuse in the book to not show up. Breaks my heart to see her hurt and when he calls (6 times so far) he just tells her that it’s my fault. Anyway, it’s a much longer story than that, but I’d thought I’d share the research I’ve done on enforcement options. I am still trying to decide what to do to advocate for my daughter.
Jennifer: the links you provided are great self help resources. However, in my experience as a family law lawyer in Oregon, the court will not use it’s contempt power to punish a parent that takes less time than they were provided in the parenting plan. The court can modify the parenting plan to have the wirtten plan reflect the actual time being used.
My step kids are 11 and 8 and refuse to see their biological mother. See has only seen them sporadically over the last 6 years, not sticking to the parenting plan AT ALL and now they refuse to leave with her, last time they jumped out of her car and ran back in the house. She has also not paid child support in almost a year. She is now threatening us with contempt charges since the children refuse to go with her, even after we told her to go ahead and show up! We are at a loss at how to deal with this situation, any advice?
You should consult with an experienced family law lawyer immediately. Contempt has to be willful on a parent’s part. An older child that refuse to go with a parent may be a defense, but there is a lot of risk in court for an 8 and 11 year old refusing to go, because the court may think the children are taking their cues from you. You should talk in your consult about getting counseling for the kids, or potentially a children’s attorney appointed.
I married my husband 4 years ago and have been with him for 5. I have a daughter 11 and he has two children 11 and 9 from his previous marriage. They divorced 6 years ago and just recently (3 months) I have noticed the kids have been lying to their mother about things that I have done, like badgering them about rules and chores and hitting their hands for doing something wrong…which I don’t do! My husband went to pick up his kids today at his normal time where the ex informed him that she has scheduled them for couseling to start the 2nd and that until that is figured out, she will not let him see or speak to his kids. He did contact the police and made a report per DOA advise. I know we need to contact an attorney, which we plan on meeting with Monday….my question is, I know she is trying to gather info against me to use against him. You wouldn’t believe the allegations! This is a women who after 11 years through him out and divorced him cause she wasn’t happy. Now after 5 years, why is she doing all this with no reason? THANKS!
Admin: You said, “In your situation, you also cannot file a motion for enforcement of parenting plan claiming that they are violating the parenting plan by not exercising their time.”
That’s not true, according to The ODJ website. http://www.ojd.state.or.us/GRA/home.nsf/pages/FAQ
22. Can a parent who has custody use this enforcement process if the other parent does not follow a parenting time court order?
Yes. Either parent may start this court and mediation process by filing the forms available at the courthouse.
You misunderstood the quoted comment. Either parent regarless of whether he or she is the parent with “legal custody” can utilize the enforcement of parenting time process. The quote that you are referencing came in response to a comment about forcing the other parent to use his/her parenting time. The court will not take action to force the other parent to follow the parenting plan when they are not using their time. In that situation the proper filing would be to modify the parenting plan to reflect what is in the children’s best interest and to reflect the actual time each parent is spending with the children. I hope this clears up any confusion.
Last week my 13 year-old step-daughter called her father last week and told him that she would be going to her grandmother’s (mom’s mom) house for his scheduled weekend and that it was “her right to choose” and basically there was nothing he could do about it. He put a phone call in to his ex-wife a few days later to see if he could take her the following weekend and got no response from her at all. Then, the daughter called my husband and left a message telling him that she no longer wants to see him or speak to him. This comes after he spoke to her about her grades–she’s failing 5 classes in her mother’s care. As written in the divorce decree he has the right to every other weekend, every other holiday and 2 weeks in the summer. I don’t know that there is even a parenting plan in their case. His daughter just left a message on his phone saying this and that his ex-wife is “getting a lawyer” and that she “just wants it to go SMOOTHLY…” This kind of came out of nowhere for us and we’re not sure where to go from here. What do we do?
You should talk to an experienced family law attorney immediately. You don’t want the ex’s new parenting plan to become the new status quo, and prompt action is needed.
My Parenting Plan states that I must persue “future disputes regarding the parenting plan” through mediation. Further that “Mediation regarding parenting/scheduling issues must first be persued prior to and pleadings”.
Does this mean I have no recourse for pressing Contempt of Court other than mediation?
In order to fully answer your question you would need to have an attorney review the full judgment form. Some judgments have the language you describe with a provision that the clause does not apply to emergencies, including enforcement of the parenting plan. In any event it is easy to schedule mediation through your local county and have it completely very quickly.
Can the parent with full custody file a contempt of court preceding against the other parent for child support arrears? He is in the military and is in excess of $6,000 of arrears.
Special rules apply when a parent / obligor is in the military, and you should consult with a family law lawyer who is familiar with military law.
I am the custodial parent and for the last 18 months my ex-husband has been homeless, refusing to give me the address’ of where he is staying when he stays with family and friends and has not asked for any weekend visitation. We have never denied him any visitation time, he has simply not asked for it. He decided he wants to take us to court for contempt when the DA told him that they were going to suspend his ODL for contempt of court as he owes just over $2800.00 in Child Support arrears.
He claimed “hardship” and requested a re-calculation stating that he couldn’t find work and then was later denied that re-calculation as he never turned over the necessary records.
We are at a loss here, he has been homeless and hasn’t requested the time with her for over 18 months. Whatever time he does request (about 4 hours a month) he gets with no question. regardless of day or time.
What are our options here?