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.
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?
Ten days ago my fiance and his ex-wife went to court because she petitioned to modify the final divorce decree. They originally had joint custody but she wanted sole custody. The judge approved the modification and he now only has parenting for a few hours every wednesday, every other weekend and then phone calls every week night. Last weekend she showed up two hours late to drop the kids off for his first weekend visit and she has not answered the phone once this entire week. He understands that it is not convenient to talk to the kids every night, but she even emailed him on Thursday and stated that the kids looked forward to speaking to him on the phone “tonight and tomorrow night.” However, she did not answer when he called either night and they did not call him back. Also in her email she informed him that they will be out of town next week so he will not be able to see or talk to his children for the next ten days. She has a history of not following the custody agreement and disrupting parenting time. What is the appropriate action in this situation? Is it too soon to file for contempt of court and/or enforcement of parenting time order?
My daughter is unable to see her children every other weekend as laid out by the parenting plan. She is required to work weekends at her job at Macy’s. She has a variable schedule at work and is going to school for her degree to find a job. Her exhusband will not work with her schedule and insists that she adhere to the parenting plan. Can she be held in contempt of court. She does not have money for babysitting and needs the job to live and pay child support. She loves her children. Her husband refuses to let her see the kids on days she has available. Will she be held in contempt of court. Her husband and his girlfriend constantly harass and threaten her with this.
I have a 12 year old child with my ex, we never married. I gave my ex custody of my child around 8 years ago and we agreed upon a generic parenting plan. My ex got married about 4 years ago and it has been a nightmare ever since. His wife is very combative toward me and hates me. They have belittled, slandered, and insulted me to my child for four years. I believe this has had a terrible psychological effect on my child and my child has since become to hate me. I decided to separate myself from situation because of the constant battling from all of them and I haven’t seen my child in over a year. I am not sure what to do. I love my child and what to see him, but I think serious therapy needs to happen along with parenting time enforcement Please help!
I am the supervising party for my cousin and her son. they are doing over night visits at my house… my question is: If I need to pick up my child or run to the store is it ok for her to go with and her son since im the court ordered supervisor or does she have to sin in my home the entire visit becuse the order was supervised visits at my home.. Im just confused please help me to understand my role as supervising party.. thanks
My ex- wife is leaving my 5 year old with her mother who has an open CPS case and is violating the order because I get first right of refusal and she is not safe there. Is this a contemptable offense.
It states the other party should be considered first if the other parent is unavailable which my wife and I always are. Is theis contempt of the order?
Mike: any willful violation of a patenting plan is potentially the basis if a contempt action. You should go over your parenting plan with an experienced local family law lawyer.
Sean Stephens
My daughter father filed a restraining order against me Oct 22 We had gone to court Nov 17 a personal conduct order and child visitaion was order Temporary until how next court date which is Feb 23, 2011. Nov 23 was his first visit with our 5month old daughter and the day before that she was in the hospital she had a real bad cold..I allowed her to go with him because the court order me to do so..Prior to his visist Nov 23 he hadnt seen her in 2months. So I was already highly concern being his first child and her being sick and not being around her in 2months prior. So I emailed him she was sick and the medication she had to take..He did not reply back. So when I met him on Wed..I tried explaining to him our baby meds..and he refuse to listen walking off while I am trying to talk to him…So I walk with him to his car continuing to try and explain to him..he was being very rude and angry towards me.So that day i emailed him just to check on my baby he did not reply i called he did not answer..I pick her up on Thrsday he did not say a word to me..So his next visit was Nov 27th He did not show up and have not shown up sense. he emailed me that would not be picking her up on Sat which was the 27 of nov due to my conduct on Wed. today is December 20 I have not spoken to him nor have i seen him he do not show up at our meeting point. Nov 30 he filed another restraining order on me..it was denied..and on Dec 16 he filed another retrsiang order on me im not sure of the results.. With all that said what should I do? I continue to make reports when he doesnt show..I am keeping my paper trail..Should i file contempt of court?
My fiance’ has had custody of his 17 year old son since he was 15. He has lived with us during this time. His mother has willfully missed 42 days of scheduled parenting time in the last eight months and usually cancels an hour or two before she must pick him up. We can’t schedule anything. Worse is the fact that her excuses, such as not being able to have him due to a “scrapbooking” class, makes his son feel really unwanted. She is doing this to “get back” at my fiance’ for some reason unknown to anyone, including my fiance’. Additionally, she has missed most of the Wednesday nights on the parenting plan and usually doesn’t even bother to contact him. She was found to have lied about her income and when discovered, increased parenting time so her child support payment was less. We have filled out the necessary forms and are ready to file. What are my fiance’s chances?
Ms. Powell:
We would have to look at the parenting plan and judgment to determine the best strategy. I would have to know more about what type of restraining order he filed. You should consult with our firm, or another experienced family law lawyer quickly.
Jeanne:
I would have to look at the original judgment, her original financial documentation, and your new documentation of her income to answer the support modification question. Regarding parenting time, courts can and do modify parenting plans to match what the parties are practicing. For example, if parents consistently don’t use the time per the parenting plan, a judge could modify the plan to reflect the time actually used. Even if the court does not modify the plan, for child support purposes, the court can still recognize the amount of time being used and calculate support based on the lower (or higher) amount of time without actually modifying the parenting plan.
What kind of offense can be used in a contempt of court hearing for parenting time. When the attorney father is custodial parent, and the judge denies the contempt of court based on the defense that the children 9 and 12 do not want to go with the visting parent. A motion was filed for a writ of assistance and the judge denied it.
One year ago both parents lived in the area with joint custody, 1 week on 1 week off. The mother asked the court if she could move with the children for work purposes 4 hours away, she was denied by the court to have children and moved anyway, the court changed her joint custody to sole legal custody to the father.
the court asked at that time for the parents to come to him for a parenting time plan later. So there is a parenting plan in place.
My Ex wife keeps bringing friends and her family to my house to pick up kids and i tell her not to cause they don’t need to know where i live is there any laws that i can inforce to get her to stop doing it?
We are in oregon
I have a question. Biological Father was given parenting time everysat. He decided not to come any more and sent me emails telling me not to show up and telling me to tell her good bye. My husband and I filed for adoption because he had abandoned her for a year or more. Now that we are waiting for the courts to set a hearing he sent me texts saying that I have to take her to visitation or he will have the cops come to my house and hold me in contempt.? In over a year this is the first and now only because we filed for Adoption. What can I do. I have followed the rules and he has not. I showed up for six weeks with out him showing up before he finally told me not to! Now I have to or face contempt? I do not get it. He choose that not me. Help
My husband could not get his kids for one of his weekends. He informed the custodial mother of this. A couple of days passed and he realized he could get them. He told the custodial parent that he would be picking them up as scheduled in the visitation agreement. She then claimed that she already told them they were with her and proceeded to fight him on it until he gave up and said he would just get them for his next weekend visit. All of this was done via email. 3 Days before his scheduled weekend she changed her mind and said he could get them. By that time he already committed to something else and couldn’t get them. She is threatening to file contempt on him. Can she do this after she said no.
I got divorced when my son was 5, at the time i didn’t have the money for a good lawyer, so i got railroaded. Over the years my ex has lied to ranted to our son. he let her place and moved in with me at 18, said he wanted nothing more to do with her. Now she is taking revenge and want to take me back to court, and he is now 20 yrs. old. And is lying saying i didn’t pay all the child support. And I did. I was suppose to get him throughout the years 80 days a year. I got him over 200 days a year, she never wanted to keep him just the money. so with her tactics she would tell me take certian stuff out of the child support check for things for him. What I didn’t relize is she was setting me up. I never got to claim him on my taxes even thought i had him more. I have everything documented, but time when she wouldn’t have him for weeks, she wouldn’t take a check. so much more here. bottom line is she is telling her lawyer i’m a dead beat dad, and i am not, i would do anything for my son. and everyone knows this encluding her family. I never took her back to court, because i didn’t want my son to feel all the stran so I just excepted it all and done the best for my son. so now what do i do , I have bentover backwards, and have gone way beyond anything she has contrubited to our son. How does a good dad get such a bad rap, and how do the courts control someone lying. so now her lawyer says she is out for revenge, because her son doesn’t want anything to do with her . which i don’t think is heathy for him , but it is his choice , he is of age now. He is upset with her because he knows I have done anything and every thing for him, he doesn’t think it is right. so frustrated and will soon be broke, if this proceeds in lawyer fees.
help
The other party in my case has not done her parent classes (clackmas county) what steps do I take to enforce she take it? Is there a form I must fill out?
Chris:
I would hesitate prior to trying to contempt your ex for failing to take the parenting class. Usually the court won’t let someone modify the plan until they comply with the parenting class requirement.
Thank you, It seems she get away with everything, we have 50/50 everything. I’ve done my class and pay child support, yet she gets away with not having to do it and I still have to pay? I’m wanting to get full coustdy of the 2 kids, sense she has been having the kids their homework has been lost, she has a violent man in her house busting holes in door swearing and calling her names in front of the kids. we just started this parting plan per the court in April is it to early to try and get full coustdy?
Chris:
The safety issues are concerning, and would be concerning to the court, regardless of how long since the plan went into effect. I suggest you talk to us or another law office quickly to determine your rights.
My brother won sole custody of his now 5 year old daughter 2 years ago — At that time, his ex was charged with 2 contempt of court charges for leaving the state w/his daughter and not communicating nor taking his calls. My question is, what are the ramifications for contempt? It seemed like in court that she just got a “slap on the wrist” and no other sanctions. She walks a line of violating the order all the time. In your experience, is there more of a prejudice towards men? Just curious. In my opinion, the Judge did not seem hard enough on her based on her willful violations of the then parenting plan.
My ex was held in contempt. She is supposed to pay me contempt fee’s. How long does she have to pay it? What can I do to seek payment if she is not paying? She also is to pay childsupport. She is already 4 months behind. She is running from job to job making it hard for DCS to catch up to her. She has also gave DCS the wrong address for her current employer. How far does she have to be behind before I can take her to court on another contempt for not paying her support?
Thanks, I look forward to hearing your advice.
Kris:
While not always a good idea to pursue, a willfully missed single payment may be sufficient for contempt.
Jan:
The court has a broad range of sanctions they can impose if someone willfully violates a court order, however, judges have discretion in what sanctions to impose, and generally withhold the harshest sanctions for serious violations and people that repeatedly violate court orders.