Seeking criminal contempt for denied visitation

Posted Sunday, September 20th, 2009 by Gregory Forman
Filed under Contempt/Enforcement of Orders, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific, Visitation

A few months ago I prosecuted a rule to show cause in which the mother had refused to let my client (her ex-husband) take the children to his wedding, even though it was his weekend with the children.  Because I only sought civil contempt (designed to enforce compliance with the order) rather than criminal contempt (designed to punish for non compliance) the result was that my client received an extra weekend of visitation.  His children, of course, will have no memories of their father’s wedding.

Family law attorneys often forget (if they ever remembered) that contempt can be used to punish as well as enforce.  I see more family court judges using criminal contempt sanctions for parents who deny the other parent court-ordered visitation.  I applaud this trend.

As Judge Wayne Morris Creech  (a family court judge in the circuit in which I practice) once explained to an opposing party before sentencing her to jail for criminal contempt after she denied my client his court-ordered Christmas visitation for the second consecutive year in which he was entitled to it, there are “jail people” and “not jail people.”  Not jail people “don’t think about jail is a place that you could end up.  But you come over and you disregard a court order and you thumb your nose at the court…” and Judge Creech might send you to jail.   He further explained:

But, I’m going to tell you this, I have seen this before.  I have dealt with it many times.  I know how to correct it. And here’s how you correct it.  You give jail time.  And you make it grow, and grow, and grow.

I tell you, I have not encountered anybody in 20 years on the bench that I was not able to bring into compliance with court order.  They will do one or two things: Run or comply.  Here’s the reason.  Most people can’t afford to take off six months from work.  And, I could today, with the finding that I have, sentence you to six months in jail.  If I sentence you to six months in jail, you would lose your job.  You probably would lose your home.  I mean, do you understand the repercussions that flow from six months in jail.  I mean, it is life altering.  It is life altering. And, I just haven’t run into many people that are willing to say to me, judge, bring it on.  Heap it on here.

And usually what I do is give a taste.  And I keep telling them, you taste that?  It can get worse.

The few times I have have seen or heard of Judge Creech sending someone to jail over visitation interference  it is has been very effective.  Even putting a parent in jail for just 48-72 hours gets his or her attention in a way that no other deterrent does.

In hindsight, I wish I had sought criminal contempt against the wedding-visitation denying mother.  I doubt an alternative weekend of visitation got her attention (I wouldn’t be surprised if she believes she “got away” with something by reducing the joy of my client’s wedding).  But I have started routinely seeking criminal contempt when my clients’ visitation rights have been interfered with.

4 thoughts on Seeking criminal contempt for denied visitation

  1. Ashly Ham says:

    My fiance are going through a similar thing now. He and his ex-girlfriend have a three and a half year old daughter. They’ve been separated for a little over two years. He and I have been dating for a year and a half and he proposed to me in February- the wedding is this October. In May there was a disagreement between the three of us about their daughter getting bit by the same dog a second time (it happened at the ex-girlfriend’s mother’s house, who also keeps the child while her mother is at work). There is currently no visitation order or child support order- they’ve always been able to work things out. My fiance told his ex that he was going to get a lawyer and go to court because of the dog bite issue. She said she wasn’t going to let him see her until the court date. It’s taken three months just to get the paperwork back from the court and to get his ex served. We’re waiting for the court date now. It’s been incrediably frustrating waiting because we aren’t able to see her or talk to her- and we probably won’t be able to get a court date before the wedding. He’s continued paying child support dispite not getting to see her. It’s upsetting to know that all this time cannot be made up. If he hadn’t paid child support he would evenually be ordered to pay back-child support when they went to court. Unfortunately, there is no such thing as back-visitation. The only reason the mother is doing this is because she knows she can and get away with it. The real loser in all of this is the child. She adores both of her parents- it’s not fair to her to not be able to have contact with one of them. I only pray that we have an understanding judge who can at least discourage this behavior in the future.

  2. SM says:

    Ex-wife is married to a registered sex offender.
    Is supposed to provide visitation every other weekend.
    Its been over 3 1/2 years since the last time the children have been given to me for any visitation.
    She won’t buy plane tickets and the Court refuses to adjust support enough to allow me to save enough money to buy any tickets.
    She takes them out of State to do anything she wants whenever she wants, but has not been charged for kidnapping, contempt, denial of visitation, child neglect, child endangerment or anything else she should have been.

    1. Leah Gordon Arnold says:

      My ex husband is a sex offender who molested our kids and got full sole legal and physical custody. I know this is five years old but its still fucked up. Its been 3 years since Ive seen my kids – I can’t stand it another minute! The great enemy is apathy…

  3. SDM says:

    Issue – My husbands ex wife is a family law attorney in Missouri. They have been divorced for almost 4 years. She is remarried. They have two children ages 14 and 17. We got married three months ago. WIthout going into all the dramatic details, I will say that in the last 9 months, she has modified the parenting plan, visitation, child support. She did this a week after we got engaged and moved into a larger house to accomodate all of us including my children. All of the judges who were assigned recused themselves. We hired an attorney and tried our best to work with her so that it could be resolved quickly. We did hire an attorney but it was mainly to just get legal counsel regarding change of child support. My husband basically gave in to all changes and did this because he knew (his son told him) that his ex was telling them everything that was going on. He finally just agreed to most all the changes so that the “bleeding” would stop for the kids sake, for his h ealth, and for our relationship.

    His son (17) and him are extremely close and have a wonderful relationship. His son and I have a wonderful relationship as well.
    His daughter (14) has always had anger issues even before my husband and I met. Not all the time but it has gotten worse and in the last few weeks has decided she does not want to come over for court ordered visitation. Her mother is NOT enforcing visitation and has even told my husband that she will not force visitation. His daughter will not give him any details except that she says she didn’t like it when I told her to be more respectful of her father. I did tell her this but I said it in a kind way and did not yell and is exactly what I would expect of any child or adult. She had been so rude and hateful to her father each and every time she was over. That was over 3 months ago that this happened and since then, we have had many fun times. However, all of a sudden, 2 weeks ago she decided she was mad enough to not come over anymore. She started quoting family law statutes regarding visitation and how children can decide at a certain age when to come visit. We kno w for a fact that this is coming from their mother since she is an attorney.
    My husband is an amazing dad. I am not just saying this because I am his wife. He truly is a wonderful, loving, kind parent who has NEVER spoke ill of his ex in front of the kids. He exemplifies the roll that an ex spouse with children should. He truly amazes me because I don’t think I could take the mental abuse that he has taken and still refuse to say anything not only to his children but to his ex wife. This is partly because he is scared of her since she knows the law so well. She plays on this and knows that she can twist anything.

    He loves his daughter so much and would do anything to make things better. He refuses to MAKE her come or to file contempt of court for his ex because that would hurt the kids. He calls and texts his daughter every single day more than once telling her how much he loves and misses her. He wants to try counseling but knows that his daughter will most likely refuse and his ex is saying she doesn’t know why he thinks she needs counseling. Personally, I think it’s because a counselor will eventually find out that she has been manipulating the kids thoughts and will realize that her actions are not concurrent with the BAR for ethical behavior.

    Question – What should we do? How do we move forward? What do we do to help his daughter? What do I do and how can I help? We just want her happy and want his ex to quit using her “authority” to scare us and manipulate the kids.

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