Using the court’s contempt powers to stop visitation interference

There are some custodial parents who are unreasonably resistant to the other parent’s relationship with their child(ren). Often such parents will manipulate and maneuver to prevent the other parent from exercising his or her (because custody typically goes to mothers, primary his) visitation. However, proper application of the family court’s contempt powers can stop such nonsense.

There are two keys to successfully using this approach. The first is to adequately document the contempt so that it can be proven to the family court’s satisfaction. The second is to use a graduated approach on employing the family court’s contempt powers.

The increased use of electronic communication technology in the past twenty years has made it much easier to document and prove visitation interference–but the non-custodial parent has to methodically use this technology and preserve communication records in order to document contempt.

A typical method of visitation interference is denying telephone visitation (or, in its modern guise, “electronic visitation”). In the days before cell phones it was hard to document when telephone visitation was being denied, and enforcement actions devolved into “he said/she said” swearing contests. For folks who don’t keep good records it still can. However it is now very easy to document electronic visitation denial. It starts with the non-custodial parent using a cell phone to initiate this visitation. If the call is not answered by the custodial parent, the non-custodial parent should: 1) leave a message for the child to call back; 2) send a text message to the custodial parent asking that parent to have the child call; 3) preserve a screen shot of that text message. If the custodial parent requires the phone call to be made to a landline, the non-custodial parent should send and preserve an email rather than a text message.

Next, the non-custodial parent needs download and maintain the detailed cell phone usage records. These are available online from all major cell providers. These records show the time and number for every incoming and outgoing text message and phone call, as well as the length of every phone call. Contempt can be effectively demonstrated by showing the cell phone record documenting a one-minute outgoing call to the other parent’s number coupled with a text message or email requesting a return call shortly thereafter. This demonstrates the date and time the non-custodial parent attempted to initiate phone visitation. The one-minute call is key because it is short enough to leave a message but not so long as to be visitation. Next one shows the time of the return call–if any–from the custodial parent’s number. Often there will not be one that day, or even in the next twenty-four hours. This is solid evidence of electronic visitation denial.

For proving physical visitation denial, the key is to handle disputes regarding the arrangement of the visitation via email. Email is excellent in that it not only preserves the language and demonstrates the tone of the communications, but it shows the exact date and time each communication was sent. If the non-custodial parent is entitled to midweek visitation at “mutually agreeable” times and the custodial parent fails to respond to these request for days, and then frequently comes up with an excuse for denying it, email is an excellent way to demonstrate the custodial parent’s non-compliance. Where visitation orders require the parties to cooperate in arranging visitation times or transportation, family court judges are wise enough to distinguish infrequent and polite refusals that contain a reasonable explanation from frequent, rude and inexplicable refusals–and are likely to find the parent engaging in the former type of communications in contempt.

After one has developed the evidence of visitation denial, the next step is to access the court’s contempt powers. These denials need to be in clear violation of explicit language in the court order to hold a parent in contempt.  However when visitation orders use language like “reasonable,” the court is entitled to determine a party is unreasonable and find that party in contempt. This is why email communication regarding visitation is vital. Refusal to communicate regarding matters that require communication–such a arranging “reasonable” visitation–is unreasonable. Communicating in an unreasonable manner is not “reasonable.” However it is hard to document this unless the communication is written and preserved.

Initially, I almost always start by seeking civil contempt sanctions, with the goal being to get the custodial parent’s attention. In addition to the custodial parent being found in contempt and the non-custodial parent being awarded make-up visitation, the family court should award the non-custodial parent all of his or her attorney’s fees and costs for documenting this contempt. Typically if the contempt is not trivial, and is fully documented and proven, the family court does award most or all of the fees incurred to prove it. The family court also has the option of imposing contempt sanctions.

S.C. Code § 63-3-620 enumerates these sanctions as, “a fine, a public work sentence, or by imprisonment in a local correctional facility, or any combination of them, in the discretion of the court, but not to exceed imprisonment in a local correctional facility for one year, a fine of fifteen hundred dollars, or public work sentence of more than three hundred hours, or any combination of them.” Since the contempt initially sought is civil in nature, the contemptuous party is entitled to “purge” the contempt–that is, given some opportunity to avoid these sanctions. Typically this is done with what I call a “go and sin no more” order, in which the family court judge issues a contempt sanction but stays the sanction conditioned upon the offending party’s future compliance with the court order.

However, if a custodial parent has already been found in contempt of court for denying visitation, and that custodial parent continues to deny visitation, I typically seek civil and criminal contempt sanctions. My goal now is both to enforce and punish. Criminal contempt sanctions are the same as civil contempt sanctions except they cannot be purged. It is incredibly powerful to have a custodial parent go to jail–even if only for a matter of days–for denying my client visitation. Three times in the past decade I have employed criminal contempt remedies to end a custodial parent’s repeated interference with my client’s visitation. Three times these mothers (it was always mothers) spent one to five days in jail for their contempt. In all three cases, the mothers’ attitude went from “what excuses can I make to prevent the father from exercising visitation without being in violation of the court order?” to “what do I need to do to keep from going back to jail?” None of those fathers–who previously had multiple visitation problems annually for a period of years–had any subsequent visitation problems.

Non-custodial parents frequently come to me complaining about the custodial parent’s resistant attitude towards visitation. If those parents are willing to take the steps to document the contempt, and are patient enough to allow me to prove the contempt twice, their problems are almost always fixable.

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