When a Strongly Worded Letter Just Isn’t Enough…

Got an ex who always shows up late for pick ups/drop offs? Or one who is months behind in child support? You’ve sent them emails, texts, strongly worded letters… and nothing seems to work. So what do you do when one party continually violates a court order? If it’s a parenting plan, a child support order, a maintenance order, a restraining order, or any of the aforementioned as temporary orders, then a contempt hearing might just be in order. Contempt is defined by RCW 7.21.030(b) as the intentional disobedience of a court order.

What constitutes contempt?

In order for the court to hold someone in contempt, there must be:

1. a lawful court order which the other party is aware of;
2. a violation of the plain language of that order; and
3. bad faith or intentional misconduct on behalf of the violator

Thus, sometimes one parent has violated a court order (ie: showed up late to an exchange), but there is no bad faith (ie: late parent was late because there was a backup on I-5 and he couldn’t make it on time). In this case, although the parent has violated the order, no contempt would be found.

However, in the case where one parent is late to every single exchange, the other parent continually points out to the parent that he/she is late (in writing is always best), and the late parent never rectifies his/her ways nor ever has a valid excuse, then that parent may very well be found to be in contempt.

Contempt actions can be used regarding parenting plan provisions – however know the dispute resolution section of your parenting plan and make sure that if it’s an actual dispute about the clarity of the parenting plan then you are must follow the ADR requirements before running to contempt. Contempt may also be used when another parent is not paying child support or an ex-spouse is not paying maintenance. However, contempt is not available if you are seeking to enforce monetary provisions of a property settlement.

Do know that contempt is a severe remedy that is not to be taken lightly. Ensure that all three elements are met before pursuing a contempt charge and consider whether other avenues may be better. For example, if you say your ex-spouse is violating provision 3 of the parenting plan, but your ex-spouse says she reads the language differently, a motion for clarification of the plan may be the better route to go. That said, if the facts are clear, the plain language of the document cannot be read a different way, and the ex-spouse continues to act non-compliantly, then contempt very well may be the way to go.

How do I start a contempt action?

Contempt requires a Motion for an Order to Show Cause re: Contempt and a declaration to go along with it. The first step is to file this motion and declaration with the court via ex parte, requesting the court to grant an Order To Show Cause. Once you have this order, then you need to personally serve the other party all of the documents, including your signed Show Cause Order. A hearing can be set for 14 days after the date when the other party is served. Best practice, to ensure you have enough time between seeking the ex parte Show Cause Order and the hearing is to set the hearing for a few days more than 14, to make sure you have the opportunity to get all the documents personally served.

Once served, the hearing is like any other on the family law motions calendar. The other party will have the opportunity to respond, explain his/her side of the story, and that is due to you and the court by noon four court days before the hearing. You then have the opportunity to put in a reply, due to the other party and the court by noon two court days before the hearing.

What Can Happen at Court?

If the court finds that the other party has in fact violated a lawful court order and done it intentionally and/or in bad faith, there are a number of remedies that can occur, depending on the circumstances. In the case of financial issues, such as back child support or maintenance, the court can order the delinquent party to pay up, and pay an interest on the back amount at 1% per month, 12% per annum. In the case of a parenting plan violation, the other party may be ordered to give make up time in the case of missed residential time or order other provisions as necessary to ensure that the violation does not happen again. The court can also award attorney’s fees to the prevailing party and a court fee. In the case of a parenting plan, if one parent is found in contempt two or more times in a three-year period, this grants the non-violating parent the opportunity to file for modification of the parenting plan.

A contempt order will have specific conditions in it, called “purge conditions,” which are requirements that must be satisfied by the violating parent in order to remove the contempt charge. For example, in the case where the court orders make-up time, the violating parent will be in contempt until that make-up time occurs. The court may also require the parties to come back for a review hearing, specifically to determine whether the contempt has been successfully purged or not.

In extreme cases, the court may order imprisonment for contempt. This is generally a last resort and the court does not like to do this. The court has made it clear that imprisonment in the case of civil contempt is for the purposes of requiring a party to obey a court order; it is not intended to be punitive.

Overall, contempt can be a very effective remedy for a party who is acting in bad faith and continually violating an order. However, contempt is also expensive, causes further conflict, and can be difficult to prove. And if you find yourself contemplating filing for contempt, make sure you take a long, hard look at yourself and see if you are following the orders yourself. The court is reluctant to find contempt on one parent when the other one is coming to the court with “unclean hands.” *

 

 

*Though do know that one party’s violation of an order does not give the other party a free ticket to violate themselves. Nothing excuses a bad faith violation of a lawful court order – certainly not an-eye-for-an-eye mentality.
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