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Complaints for Contempt for Violations of Visitation and Custody Orders in Massachusetts
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Massachusetts divorce lawyer Jason V. Owens reviews Complaints for Contempt pertaining to custody, visitation and parenting time in Massachusetts.

Today we present Part 2 of our blog series on Complaints for Contempt in Massachusetts Probate and Family Courts. Today’s blog (Part 2) will focus on Complaints for Contempt that are filed for the alleged violation of orders for custody, visitation and/or parenting time in Massachusetts Probate & Family Courts. Check out Part 1 of the series for our comprehensive overview of Complaints for Contempt in Massachusetts and Part 3 for our review for Complaints for Contempt violations of financial orders.

The basic legal standard used by probate court judges when reviewing a complaint for contempt for alleged violations of parenting orders is identical to the legal standard used in the review of financial violations, such as a party’s failure to pay child support or alimony. However, a parenting contempt differs significantly from a financial contempt in several important respects, which are reviewed below.

Part 1. Complaints for Contempt in Massachusetts: the Legal Standard

Like all contempt actions in Massachusetts, for a judge to find a Massachusetts defendant in contempt of a parenting order, the plaintiff must present “clear and convincing evidence of disobedience of a clear and unequivocal command.” First and foremost, this means that there must be a clear and unambiguous parenting order, such that the order provides the defendant clear notice of exactly what conduct he or she must (or must not) engage in. If the order can be reasonably understood to have more than one meaning, or is otherwise ambiguous, the defendant should not be found in contempt. Second, there must be clear and convincing evidence that the defendant disobeyed the order.

A party can be found in contempt even if he or she did not “willfully” violate the order. That said, a party who reasonably believes his or her conduct did not violate the order may be able to convince the judge that the meaning of the order was ambiguous enough to prevent a finding of contempt. Although there are several defenses to a complaint for contempt, the most common defense is probably a defendant’s claim that he or she had an “inability to comply” with the order, which the defendant must provide by clear and convincing evidence.

Part 2. Contempt for Custody/Visitation Orders: Law Specific to Parenting Violations

There are several important Massachusetts cases that have specifically addressed contempt actions involving alleged parenting plan violations. In Warren Gardens Housing Cooperative v. Clark (1995), the Supreme Judicial Court held that an order requiring a mother to “adequately supervise” her children provided insufficient clarity and notice for the mother to be found in contempt, where the phrase “adequately supervise” could be subject to multiple interpretations. In Pedersen v. Klare (2009), the Appeals Court held that a letter from a mother, in which she raised questions about a father’s upcoming trip with the children, did not constitute a contempt, even though the mother’s questioning caused father to cancel the trip, where mother did not actually prevent the father from traveling.

Perhaps the leading case on contempts for parenting violations is O’Connell v. Greenwood (2003), in which the Appeals Court held that a mother was in contempt for failing to produce the child for a scheduled holiday visit with the father, where mother’s claim that the child was too sick to attend was unsupported by sufficient evidence demonstrating that she was unable to comply with the order. Notably, the mother in O’Connell produced several doctor’s notes suggesting the child was, indeed, ill at the time of the visit:

The mother, however, asserted that the child was sick during the visitation period, a fact that the father does not dispute, and proffered a physician’s note stating that he had seen the child on four occasions between December 29, 1999, and January 19, 2000, and had “instructed mother to restrict his activity to home because of his illness during this period of time.” The mother offers the child’s illness and the physician’s instruction as a permissible basis for her election not to allow the father to have the child during the required visitation period.

However, the Court held that the doctor’s notes provided insufficient evidence of the mother’s inability to comply with the parenting order:

A putative contemnor may no doubt avoid a finding of contempt if she meets her burden of proving her inability to comply with the relevant court order. But the mother’s evidence in this case falls far short of showing an inability to comply. She failed to show, for example, that the sick child could not have rested just as quietly and comfortably with the father as with the mother or that transportation between the mother’s house and the father’s would have exacerbated his illness or retarded his recovery. There is no showing that she even inquired of the doctor on those subjects. Her failure to do so dooms her effort to upset the contempt judgment on grounds of inability to comply, particularly given the judge’s unchallenged finding that the father had “proven … that he [was] equally capable of addressing [the child’s] medical needs” and that the mother “refuses to involve [him] in [the child’s] medical treatment.” (Citations omitted).

It should be noted that the O’Connell Court expressly referenced the mother’s prior conduct, as well as the parties’ lack of ability to cooperate in other ways, in making its findings. There is little doubt that the Court’s extreme skepticism towards the mother’s position regarding the child’s illness was influenced by the history of the parties’ strife.

Taken together, Warren Gardens, Pederson and O’Connell tell us that Massachusetts courts view the clear terms of a parenting schedule as unambiguous orders that must be obeyed unless a defendant can produce persuasive evidence that he or she could not comply with the order. By the same token, courts are less willing to find parents in contempt for engaging in less clearly defined behavior, such as failing to “adequately supervise” a child, or communicating in a manner that the other parent interprets as uncooperative.

Part 3. Ambiguous Visitation Orders and Complaints for Contempt

As the Appeals Court pointed out in Sax v. Sax (2002), ordinarily, “[a]mbiguities are regularly resolved in favor of the alleged contemnor”. This is to say, if an order is ambiguous, this generally favors a defendant in contempt proceedings. However, the case of Hernandez v. Branciforte (2002) provides a cautionary tale, where even a somewhat ambiguous agreement or order may be sufficient for the court to find contempt if the unclear order was originally drafted by the defendant or defendant’s order:

Although the stipulation and separation agreement dealing with visitation are not models of clarity, we think that they were sufficient to apprise the mother of her obligation to facilitate visitation during the father’s February vacation from his teaching position. This she failed to do, and she does not challenge the judge’s decision to construe any ambiguities against her because she drafted the stipulation.

Granted, the Hernandez Court leaves open the possibility that the outcome could have been different had the mother chose to “challenge the judge’s decision to construe any ambiguities against [the mother] because [the mother] drafted the stipulation.” But the case speaks to the reality that judges take a dim view when a party seeks to exploit an ambiguous provision that that he or she insisted be inserted in an agreement.

Part 4. Practical Considerations: What will a Probate Court Judge Actually do about a Parenting/Visitation Violation?

As noted in O’Connell, a probate and family court judge can order a change in custody if one parent’s conduct amounts to an attempt to “fully and completely seek to exclude the other parent from the child’s life.” However, most violations of parenting or visitation orders are not so egregious that they warrant a change in custody. This often leads to parties asking: what is the judge really going to do if I file for contempt? This is a valid question. Going to court can be stressful, time-consuming and expensive for parties. Moreover, a judge may not be thrilled to hear a complaint for contempt focused on a parent’s violation of an objectively minor parenting issue.

It is important to note at the outset that the legal standard for a finding of contempt is largely stacked in the defendant’s favor. The need for a clear and unambiguous order, as well as a clear violation of the order, are designed to ensure that the court’s contempt powers are only exercised when absolutely necessary. The practical reality in probate court is that judges are often quite cautious about finding parties in contempt, not just because of the legal standard, but because judges fear triggering a “tit for tat”, in which both parties continually return to court over every minor parenting dispute. Lastly, judges are mindful of the limited remedies they have for minor parenting infractions; a judge will often ask, somewhat incredulously, what do you really want me to do about this violation? Indeed, it is not uncommon for a judge to lecture both parties – even when one party has clearly violated an order – about the need to cooperate and resolve differences between themselves without returning to court.

In the end, a probate court judge who finds a parent in contempt for his or her first visitation violation is unlikely to punish the offending parent with harsh orders. The judge may order makeup time (if the other parent lost time), and will frequently enter clarifying orders that reinforce how each party should act moving forward. The judge may choose to order the parent in violation to pay the reasonable legal fees and costs of the other parent; then again, they may not. For a first-time offender, the judge is unlikely to change custody or radically rework the parenting schedule, although a judge may tweak the schedule to address any obvious problems. The penalty is unlikely to be harsh. For many parents, this again begs the question: what is the point of filing a contempt if the judge is not going to punish the defendant?

Part 5. The Power to Modify and/or Clarify Orders Through Contempt Proceedings

In the parenting context, a probate court’s most powerful tool in contempt proceedings is the ability to modify or clarify the parenting schedule through the contempt proceedings. Probate Court judges rarely distinguish between the similar powers of “clarification” vs. “modification”, but Massachusetts case law suggests they arise out of different bodies of law.

The probate court judge’s authority in contempt proceedings to “clarify” the parties’ grows primarily out of contract law. In Cooper v. Keto (2013), the Appeals Court held that a former husband’s conduct was inconsistent with the intended purpose of the parties’ divorce agreement. Because the provision in question was ambiguous on its face, the Court held that the husband could not be found in contempt. Where the parties disagreed on how to interpret the provision, however, the Court was well positioned to clarify the contested provision, which ultimately led to orders requiring the father to comply with mother’s interpretation of the agreement. The key point made in Cooper and similar cases is that orders for clarification are meant to resolve ambiguities to prevent future disagreements between the parties. And although a party generally cannot be found in contempt for violating an ambiguous order, a judge entering orders for clarification must invariably decide how the parties should proceed moving forward. This sometimes means “splitting the difference” between each party’s view, but more often, the judge will adopt one party’s position, then enter an order for clarification declaring that the parties will comply with said position moving forward.

A probate court judge’s authority to modify parenting orders through contempt proceedings arises out of two separate bodies of law. The first and most straightforward way that a judge can modify an order through contempt proceedings is if evidence is presented establishing that a substantial change in circumstances has occurred that warrants a modification. Where a substantial change in circumstances is the legal standard for modification in Massachusetts, a judge may change the order if the standard is met, even if evidence is heard through a contempt. However, judges must be cautious when exercising this authority in contempt proceedings where a defendant is entitled to notice of the other party’s request for modification, and a defendant’s preparation for a contempt action may differ significantly than his or her preparation for a modification action.

In the seminal case of Furtado v. Furtado (1980), the SJC noted that “[c]ivil contempt proceedings are ‘remedial and coercive,’ intended to achieve compliance with the court’s orders for the benefit of the complainant.” In LABOR RELATIONS COMM. v. FALL RIVER EDUCATORS’ASS’N (1981), the Court explained:

Unlike a criminal contempt which is punitive, to vindicate the authority of the court, a civil contempt order is intended to be remedial and for the benefit of an aggrieved party. …. For this reason, both compensatory and coercive orders are considered to be in the nature of civil contempt. … “Remedial or compensatory actions are essentially backward looking, seeking to compensate the complainant through the payment of money for damages caused by past acts of disobedience. Coercive sanctions, in contrast, look to the future and are designed to aid the plaintiff by bringing a defiant party into compliance with the court order or by assuring that a potentially contumacious party adheres to an injunction by setting forth in advance the penalties the court will impose if the party deviates from the path of obedience” (citations omitted).

In the case of parenting orders, a typical remedial order would involve granting the plaintiff “make-up time” for any parenting time the plaintiff lost as a result of the defendant’s actions. The court’s authority to enter coercive orders is a more powerful tool. In order to discourage the defendant from future violations, a probate court judge has the authority to permanently modify a parenting plan. Moreover, as the Appeals Court held in O’Connell v. Greenwood (2003), if a judge feels that coercive changes to the parenting plan are insufficient to resolve the problem, the court may enter an order changing custody if the judge believes it is in the child’s best interest:

[I]n the face of ‘overwhelming undisputed evidence of hostility between the parents and their disagreement on matters pertaining to the child,’ the child’s best interests, always the paramount concern, are likely better served by ending the joint custodial arrangement, upon appropriate findings regarding those interests, than they are by coercive proceedings aimed at forcing the parties into a cooperative relationship they appear incapable of maintaining.

Part 6. The DUI Analogy: Three Strikes and You’re Out?

One way for parties to think about contempt violations is by comparison with drunk driving offenses. As most Massachusetts residents know, an individual’s first DUI arrest or conviction does not result in harsh punishment. The offender may be offered a hardship license by the Court, and the mandatory license suspension is a relatively moderate 45 days. The clear message for every first time DUI offender is this: you are getting off easy this time – don’t let it happen again.

Like DUI convictions, findings of contempt in the Probate Court can have a cumulative effect (although there is no analogy to Melanie’s Law for multiple contempt findings). The first time a party is found in contempt, the penalty is unlikely to be overly harsh. Like DUI offenses, however, a second finding of contempt against a parent will result in a significant sterner response. And a third finding of contempt may cause a judge to consider more drastic action, as well as coloring the judge’s view of the defendant’s credibility in other areas.

For these reasons, many practitioners and parties taking “the long view” in a custody/support case will view a complaint for contempt for a clear but objectively “minor” parenting violation as an opportunity to obtain the “first strike” in the 3-strikes analogy with DUI offenses. The downside to this approach, of course, is that filing a complaint for contempt can be stressful, time consuming, expensive and may result in retaliatory filings from the opponent. For these reasons, attorneys will carefully scrutinize a potential contempt for the violation of a parenting issue to try to make certain that (a.) the parenting order is very clear, (b.) the opposing party clearly violated the order, (c.) the defendant has no defense against a contempt, and (d.) the plaintiff has not violated any orders that would invite a retaliatory complaint for contempt by the defendant.

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Part 7. Common Defenses to Parenting Contempt Actions

As discussed in our blog covering the legal standards for Complaints for Contempt in Massachusetts, there is a long list of theoretical defenses that a party can argue in a contempt proceeding. Covering every potential defense would require its own blog, so instead, we will review some of the more common defenses involving alleged parenting violations.

a. The Inability to Comply Defense

As shown in O’Connell, parties may have a more difficult time proving “inability to comply” with parenting orders than with financial orders. Inability to comply is a very fact-specific defense, however. In some circumstances, it can provide an extremely strong defense to an alleged violation of a visitation order. Successful “inability to comply” defenses in the parenting context often consist of mundane real world problems, such as a broken down car, canceled flight or a work-related issue that legitimately prevents a parent from making a pickup or drop-off. However, an inability comply defense carries substantial risks where, unlike the ordinary burden proof in a contempt action, which requires the plaintiff to provide clear and convincing evidence, an inability to comply defense places the burden of proof squarely on the defendant to prove his or her defense.

b. The Consent/Waiver Defense

A second common defense is consent or waiver. Probate court judges frequently encourage parents to work out differences between themselves and demonstrate flexibility with parenting schedules. Thus, it is not uncommon for defendants accused of contempt to present a text message or email from the plaintiff showing that the parties agreed to modify the schedule. The plaintiff’s consent to the change in the schedule thus provides a defense against the alleged violation. (The concept of “waiver” is similar to consent; i.e. the plaintiff agreed to waive his or her parenting time by agreement.)

A consent/waiver defense often depends on the quality of the evidence: a clear email showing the other party agreed to a change is best, a muddled text message exchange less good, and testimony about an alleged oral agreement worse yet. Obviously, it is helpful if the defendant can detail any “extra time” the plaintiff received as part of the agreement. The consent/waiver defense is not risk-free, however. In order to present the defense, the defendant must essentially admit that he or she did not comply with a clear order, then hope the judge distinguishes between an agreed upon change and “disobedience”. In addition, a consent/waiver defense is not immune from rebuttal by the plaintiff, who may argue that he or she revoked their consent, or that the defendant failed to live up to the defendant’s side of the bargain.

If a parent reasonably relies on the other parent’s agreement to change the parenting schedule, and effectively captures the agreement in writing, a consent/waiver argument can be highly effective. The defense is most effective when a defendant presents an email confirming that he or she confirmed the agreement with the plaintiff immediately before deviating from the parenting plan. A plaintiff who invites a defendant to change the parenting plan – then files a complaint for contempt after the defendant relies on his or her invitation – generally will not be viewed favorably by a judge.

c. There is no “Cure” Defense for the Violation of a Parenting Order

One feature of a parenting contempt that sets it apart from a financial contempt (i.e. failure to pay child support or alimony) is that a party can often “cure” a financial violation by paying the amount due any time before the hearing. This is not the case with parenting violations. For example, in Cooper v. Cooper (2004), the Appeals Court noted that “an adjudication of contempt is precluded by the judge’s finding that [a party] eventually did pay the money, and has purged his contempt prior to the hearing.” As such, a party who pays his or her child support or alimony arrears before the hearing cannot be found in contempt (although they can still be ordered to pay legal fees).

In most cases, however, a party is unable to “cure” his or her violation of a parenting order prior to the hearing. If, for example, the defendant prevents the plaintiff from enjoying 8 hours of parenting time on Mother’s Day, this violation cannot be cured, because Mother’s Day is a unique event that cannot be replaced with “make-up time”.

The inability of a defendant to cure a parenting violation can make it easier for a plaintiff to obtain a judgment of contempt on a parenting issue versus a financial issue. (Notably, contempt actions involving parenting violations do not offer defendants the “inability to pay” defense that frequently thwarts contempt findings for financial violations.

Part 8. Orders for Legal Fees in Contempt Actions for Parenting Violations

For reasons that less than clear, the Massachusetts statute that presumptively requires a defendant found in contempt to pay the reasonably legal fees and costs of the plaintiff only applies to defendant’s who fail to make monetary payments. Specifically, Ch. 215, s. 34A provides:

In entering a judgment of contempt for failure to comply with an order or judgment for monetary payment, there shall be a presumption that the plaintiff is entitled to receive from the defendant, in addition to the judgment on monetary arrears, all of his reasonable attorney’s fees and expenses relating to the attempted resolution, initiation and prosecution of the complaint for contempt. The contempt judgment so entered shall include reasonable attorney’s fees and expenses unless the probate judge enters specific findings that such attorney’s fee and expenses shall not be paid by the defendant.

Probate and family court judges have broad authority to order a defendant found in contempt to pay the legal fees and costs of a plaintiff that arises out of the judge’s authority to enter remedial and coercive orders in contempt actions. Unfortunately, many probate and family court judges are hesitant to award fees for parenting violations, even when they have found the defendant in contempt. A party filing a Complaint for Contempt should always seek an award of legal fees and costs, however, if there is no financial component to the complaint, the chances of obtaining a fee award are iffy, at best.

Part 9. Conclusion

Complaints for Contempt involving violations of parenting orders involve opportunities and challenges that differ significantly from those found in contempt actions involving the alleged violations of financial orders. In our practice, we have observed that parties often misplace their focus on parenting violations that he or she feels are especially hurtful or emotionally difficult while failing to pay sufficient attention to violations in which both the order and the disobedience are exceptionally clear. If the plaintiff’s goal is obtaining a finding of contempt that documents the defendant’s non-compliance with the parenting plan, he or she should understand that the “severity” of the alleged violation – i.e. the negative impact the violation had on the plaintiff and/or children – often matters less than the plaintiff’s technical ability to demonstrate the existence of a clear and unambiguous order and equally clear disobedience of the order.

About the Author: Jason V. Owens is a Massachusetts divorce lawyer and family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. He is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Jason V. Owens today at (781) 253-2049 or send him an email.

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