Using the court’s contempt powers to stop visitation interference

Posted Wednesday, April 22nd, 2015 by Gregory Forman
Filed under Contempt/Enforcement of Orders, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Visitation

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.

20 thoughts on Using the court’s contempt powers to stop visitation interference

  1. Do you not run into problems with authenticating a cell phone record based merely on the client’s printout, when it is really a business record?

    1. Not yet. The client can self-authenticate the records as they are his or her own records. SCRE 901(b)(1).

      1. I figured that would be the response, but what about an objection that those are business records, and an affidavit or testimony from the recordskeeper is necessary to establish they are accurate and kept in the normal course of business, etc.? With 901(b)(1) SCRE, you could arguably say that a witness could testify that anything is “what it is claimed to be”. It seems very different than, for example, a picture of something that a witness testifies is a true and accurate representation of that thing.

        1. If they were business records of third parties, authenticity of business records is an issue. My clients have typically downloaded these records. They are business records of my client–the client’s record. Any further issue of authenticity should go to their weight, not their admissibility. My client can always go to the website in the middle of trial and download the document if there is an issue of authenticity of a records from the past 12-18 months.

  2. I am curious if you’ve run across any problems authenticating electronic communication? I ask because I’ve run across some parents who were able to prove electronic communications (emails and texts) were altered after they were held in contempt.

  3. Jessica says:

    this clarification has been so helpful to me as a custodial parent (mother) who has facilitated non-custodial visitation & contact in the best interest in my children; that is to say, whenever their father wants them he is free to have them because they love eachother dearly & their bond is incredible. I have recently been denied contact with my children while in their father’s care after I refused to agree to a 2/3 reduction in child support ‘off the record’. With only a vague visitation order I decided to simply keep records for our eventual trek back to the negotiation table, if not the family courtroom. Bless you for helping us navigate this minefield of co-parenting with uncooperative exes.

  4. Christina says:

    I’m having A problem with my stepdaughters mother. When our stepdaughter is with us, she dictates what me and my husband are able to do with her. Is this a form of contempt? She also tells my stepdaughter that if she does anything without her permission, she will be in trouble when she gets home. What can we do about this?

  5. Hector Dejesus says:

    What do you do if the mother moves not telling you the new address and blocks every phone number you call from. then you have NO possible way of contacting the children until you hire a private investigator to find them but now when u do file for contempt you dont have any proof because it’s been SO long of not being able to contact

  6. Marie says:

    What if the non custodial parent is bad mouthing the other? What can be done about that? Is it denying the rights if every time the non custodial parent talks to the child he try’s to make the other parent look bad?

  7. Makisha says:

    What happens when the non custodial parent isn’t paying child support as ordered and isn’t consistent in seeing her

  8. Trista says:

    My question is this if the custodial parent keeps documentation on why the visitations where denied for example the non custodial has no place to live or has moved in and out of homes with people 6 times in 3 months. Would that still be considered contempt of court.

  9. Markie says:

    In the case of 50/50 custody where the agreement states that while a parent has the child in his/her care they may not have the child in the company of another whom the parent is pursuing or involved in a romantic and/or sexual relationship with outside of marriage between the hours of 12 am and 6 am and you know they are how would you like to see this documented for the court?

    1. Anber says:

      I would first ask myself why i have issues with my ex having a girl/boy friend around our children. Divorce and having children doesnt mean control over the others life through the use of the children. If, the partner isnt mean, abusive, or etc. I dont see where there is a problem as long as the children feel safe.

  10. Delaware says:

    Ages 13-12-10 deny visitation with non custodial parent and custodial parent knows.Can non custodial parent file for denial visitation and can custodial parent be in contempt?

  11. Krystal says:

    Can denial of visitation be legally justified if the non custodial parent doesn’t always have steady contact with the child? my husband and his ex have a court order that orders him to pay child support and he is supposed to get visitation but the mother won’t allow him to fly the child for visitation. The child lives in a different state. The order was done when she was 1 and she is now 6. He has made more than 20 failed attempts to talk and webcam with his daughter. He eventually got tired of trying and it’s now been 4 months since he’s spoke to her. He is fed up and wants to enforce visitation for the summer as per the court order… but he thinks she will try to use the lack of contact to deny the visit. Any feedback would be greatly appreciated

  12. Monica says:

    Above, you stated; “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”. I’m not sure if this is my next step. I live in Ohio, so the laws may be different here.

    Close to two years ago, I took my ex to court with the intent to enforce several contempt of court charges for refusing and interfering with my visitation. However, my lawyer at the time convinced me to come to an agreement and shelve the charges. My ex has stopped refusing visitation during the school year. Instead he now enrolls my children in clubs/extra curricular activities during the summer months to use those as his new excuse to reduce my summer visitation time from three months to one week plus biweekly weekends.

    Can you please provide me with some additional guidance, or at least tell me who can? I would greatly appreciate the help! Thank you.

  13. Amanda says:

    Can someone please leave some advice on my situation, I am the custodial parent. I was granted my petition to move over 600 miles away being the sole primary physical custodian. The child began school in August of 2016 I notified the other parent of this in October of 2015, offered to give most of 2016 visitation prior to school starting. The father refused so I filed a petition to modify in July 2016 denied visitation August of 2016 because it was the child’s first few weeks of school attendance is mandatory I have proof of this from the board of education he filed the 1st contempt charge, we agreed to Christmas visitation in December of 2016 for 7 days the father sent me an email stating he will not return the child until December 31st and that him keeping her will not disrupt her school attendance. He claims her elementary school is fake and unneeded he filed the 2nd contempt charge against me for 1 remaining week in December after she was willfully returned to me. He also made her miss an oral surgery appointment due to refusing to return her on initial agreed upon date. The father apparently requested visitation to an attorney I fired after the fact for March of 2017, I was not notified of this until after the visitation was to occur. The child was in school a majority of the days he requested. He then filed the 3rd contempt charge, along with change of custody with no evidence or reasoning other than denying visits due to the child being in school.
    My petition for modification will be in court for nearly 1 year and still hasn’t been heard, now 3 contempt charges and a change of custody got thrown on me maliciously to cause unneeded stress and financial burdens. What can I expect out of this, everything has been continued since July 2016. He is not on birth certificate, nor did he want anything to do with said child for nearly the entire first year of her life. Him and his live in girlfriend or finance are avid drug users and I have undeniable proof of this.
    Any advice would be appreciated.

    1. Jennifer Gibbs says:

      I swear we are living the same life. Good Luck.

    2. Daisy Plaisance says:

      We just finished all that bullshit! First off my husband is custodial parent because of neglect from my step daughters biological mother! We live 150 miles away which lawyer knew about and we had proof he knew about so paper trail is very important! We won that relocation! However, you will be in contempt without proof that your lawyer was well aware but continued to ignore. Which, in our case we fired him after we find out he became friends with the exes lawyer. It’s a stupid law that you can’t move your child where you please, but it’s a law! We were up against the ex, whose mom runs a non profit organization for St jude kids, and who’s best friends with the sheriff and everyone else, my best description of that witch would be con artist!

  14. John says:

    Is it still considered interference if the custodial parent goes out of their way to continuously “visit” with the child during the non custodial parents time? I’m not talking about phone calls, but physically stopping by where the child and parent are to “say hi and chat for a few” or interject herself into the non custodial parents goings on.

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