What Is Contempt of Court?
Contempt of court is an important legal concept, but because it’s a somewhat slippery concept that doesn’t have a single fixed meaning, many people wonder what exactly it means and how it could affect them in their family law case. Although there is a technical definition, the basic definition is fairly simple: contempt of court is a willful violation of a court order in a way that substantially interferes with the court’s ability to administer justice or someone’s right to a fair hearing.
There are two types of contempt in family court. Civil contempt of court is intended as a means of compelling a person to comply with a court order. When a judge orders someone to do something, like pay child support, and the obligor doesn’t, the court can find that person in contempt, which can lead to jail time, fines, attorneys’ fees, or other sanctions intended to force compliance with the original order. Criminal contempt of court is a punishment for acts that interfere with the court’s ability to do its job, including failing to obey court orders (although this type of contempt includes anything that makes it difficult for the court to keep control of the proceedings). For civil contempt, it’s up to the party who obtained the order being violated to file a motion asking that contempt be found. Criminal contempt can be initiated by the attorney general, in the case of an IV-D child support matter, or by the court itself in other cases.
Having a party held in contempt of court can be an effective way of enforcing court orders, but should be used with caution. It’s important to remember that the contempt can go both ways. If a judge orders someone to do something, and they don’t, they can be held in contempt. If you don’t do something a judge ordered you to do , you may also be held in contempt. Because of that, it’s usually best to seek contempt only for significant acts or omissions that actually violate the letter of the order.
One example of a court order where contempt might be appropriate is an order to pay child support. To find a parent in contempt of child support, the movant (the one asking the court to hold the other party in contempt) has to show that:
Failure to pay child support can also be punished via license suspension, which is an alternative to contempt that may be more effective when the obligor is unemployed. In Tennessee, failure to pay child support on time can also lead to garnishment.
Another common area of contempt is where visitation is restricted to supervised visitation with a third party. In that case, the non-custodial parent may be held in contempt for failing to bring the child back after a visitation incident, although cases usually turn on the reason for the failure to return (for example, if the parent was late or if the non-custodial parent prevented the child from going returning).
However, in most cases, the better option may be a court order modification. If the custodial parent is only allowing restricted visitation, that parent may want to file for a modification of the order to reduce that person’s parenting time. If the other party is failing to pay child support, the custodial parent may want to file a motion to modify child support if that person is not paying and is making significantly less money than he or she was at the time of the most recent order.
Whether or not to file for contempt is a strategic decision that each party has to evaluate carefully before acting, taking into consideration both the benefits of holding the other party in contempt and the costs associated with contempt motions.
Penalties: Fines and Imprisonment
It is difficult to predict just how much a person found to be in Contempt of Court may ultimately pay. Generally speaking, the court has discretion to impose financial sanctions as it deems appropriate. However, in the event a court orders monetary sanctions, it will generally impose a clear, specific sum.
In some instances, the court will suspend fines or contingent upon future compliance. In the event that such an order is disobeyed, the full amount of the fine may be ordered to be paid. When the court does impose fines, the amount will increase with multiple violations of an Order or Judgment. As such, willful and repeated violations are likely to be punished with increasingly harsh sanctions.
Unlike the civil sanctions discussed above, criminal sanctions may include imprisonment. In fact, incarceration is the only punishable remedy for disobedience of a "court order." Some orders are simply not "judgments" but are "orders" (such as restraining orders or temporary restraining orders). Prison terms for contempt are usually measured in days or months, and the period of incarceration is typically proportionate to the seriousness of the act(s).
Effect on Legal Proceedings
A finding of contempt can have serious implications for ongoing legal matters. When contempt is found, the court has a few options. It may strike any pleadings the responding party has filed. Conversely, it may strike a pleading or even stay all proceedings against the responding party. The court can also suspend the responding party from practicing law in that jurisdiction, order them to pay court costs, or even pay damages to the moving party. These measures often increase the pressure on the responding party to comply in order to avoid further consequences down the line, such as sanctions, dismissal of their case, or even jail time. As an example, consider a lawful, valid subpoena for documents and testimony at a deposition issued by a financial institution related to alleged financial misconduct. If the individual in question fails to appear in a timely fashion and provide the documents and testimony requested, the institution may move, on notice, to quash or modify that subpoena. The institution could also move for contempt against the individual, even without first moving to quash or modify the subpoena, under applicable rules of civil procedure, rules of evidence, and other laws. Assuming no grounds exist to quash or modify the subpoena, however, failure to comply may later result in the court finding the individual in contempt and subjecting him or her to enforcement of the underlying subpoena, undeterred by their refusal to comply as initially set forth in the subpoena. The court may even enter a default judgment against the individual participant if he or she continues to refuse to comply.
Reputation: Long-term Damage
The long-term implications of a contempt ruling can be significant, transcending far beyond the topic at hand. For example, if you are found in contempt for not paying child support, your failure to provide the ordered amount can black mark your character in any future divorce or family-related matter. Even further, a finding of contempt may be used to impeach you with respect to your credibility as a witness should you ever testify in the future in any type of proceeding.
A contempt finding may also have an impact upon your employment prospects. A prospective employer may request to perform a background check against you and, in doing so, if it becomes apparent that you were found in contempt, that employer may be less willing to hire you. This is not to say that a contempt finding by itself will necessarily prevent you from finding employment. Rather, this is to say that your social reputation, your future family law matters, and/or your employment prospects may very well be adversely impacted by a finding of contempt.
One other point to make relevant to employment is the fact that employment is not necessarily limited to the workplace anymore. This point is most relevant to social media. If you are found in contempt for a failure to comply with an order to pay child support, the receiver of those payments may have a right to report this information to the credit bureaus of the world which can have an effect on your ability to obtain credit.
More recently, social media is changing the landscape of background checks and, in fact, can change the landscape of contempt proceedings themselves. We have all heard stories of either a plaintiff, a defendant, or just some random third-party bragging on his or her social media sites regarding the fact that they violated a direct court order. Even more, we have also heard of stories where people don’t post this sort of information on their own social media sites, but rather that information was obtained via a third party’s social media site. Whatever the case may be, the bottom line is that the voluntariness of the posted information is no longer an issue.
Consequently, if you are being accused of a contempt, you might want to think twice about whether or not to post that information online.
How to Avoid Charges
Avoiding contempt in a court case involves knowing how to ensure either party are following court orders, and what to do if they do not. In civil cases, there are generally three steps the party claiming the existence of contempt has to prove in order to be successful:
- The person charged with contempt must have violated a specific and definite order of the court.
- The violation must have been willful.
- The violation must have prejudiced the moving party.
Whatever other allegations or explanations may exist as to why the violation occurred, satisfying all three prongs is key.
In dealing with a contempt issue, the most likely scenario is that a parent is either violating a child support order, or is unreasonably interfering with the other parent’s court ordered parenting time schedule. In either case, the first step is to document the violations wherever possible. In the child support context, aside from court-ordered periodic statements, you likely have to take screenshots of bank and/or credit card account information, or printed records from cash payment locations. In the case of parenting time violations, video and photographs taken during the interaction between the parties can be powerful evidence. Sometimes attorneys even hire third parties to monitor potential disputes between parents.
The second step is to know your court orders as well as possible, and know what to do when the other party fails to comply. Sometimes, documenting the violation is enough, and the offending party desists the behavior when confronted. Other times , the violation continues. This is when it is important to have a plan in place, which can involve informal techniques like self-help, or more formal mechanisms like motions to enforce litigant’s rights.
When the contempt issue is a child support violation, the court itself can document the paying spouse’s payment history on its own motion, so in this case, you don’t even have to take the initial steps to document what’s happening. It is also important to remember that while you are waiting for a support enforcement order to issue, the obligation of the payor to pay each month is not suspended, and a support enforcement order will not relieve the paying spouse of the requirement to make monthly payments just because that spouse was not complying with the past support obligations.
The tip for ensuring a fair parenting time schedule is followed is to communicate with the other party. How does a parent who is concerned about the other’s interference with parenting time know whether the interference is real or not? By speaking to the other party. But a parent should never initiate parent-to-parent communication in front of the child, or about the child. This is where documentation takes the place of direct communication. Write down dates and times, or take pictures, and document the activities you see and the parents’ reactions.
The practice of law is often guided by experience, more than textbook knowledge. Working with a trusted and experienced family law attorney will ensure the best possible outcome for you during a divorce or post-divorce dispute.
Cases: Notable Examples of Contempt
Contempt of court is often reserved for situations that risk the court’s authority over the justice system, but it also sometimes comes into play in civil proceedings. While the most famous contempt of court case in Canada is the Supreme Court of Canada 2017 decision in Vavilov (on application by Igor and Daria Vladimirovich Vavilov against the Government of Canada), which involved the exclusion of the parents’ Russian-born children from school for the entire 2016-2017 school year for fear that the children might be Russian spies, it may be worth-looking at a few more examples of contempt of court.
A 2018 decision of the Court of Appeal for British Columbia, Cuddy v. Kear, involved parents who were engaged in a bitter divorce proceeding, including the custody of their two children. The mother, who was unhappy with the father’s parenting of the children, video-recorded a private interactions between the father and the children and gave the recordings to the judge presiding over the custody dispute. The trial judge held that the mother’s actions were in bad faith and had "attempted to prejudice [the father] before the court. She may even have tried to turn the children against him." This earned the mother a 30 day suspended jail sentence and an order to pay $50,000 in costs. The mother’s appeal was dismissed and the suspended jail sentence was ordered served forthwith.
Another ongoing case worth mentioning involved one-time media tycoon Conrad Black, who was convicted in 2007 of fraud and obstruction of justice and served time in a Florida prison. Upon his release from prison, Black applied to the U.S. government to have his criminal record expunged from his passport so that he could travel abroad. The Canadian government refused to grant the same permission for travel, and Black launched a series of legal proceedings against then Minister of Public Safety and Emergency Preparedness Stockwell Day to compel the government to allow Black to carry a Canadian passport without a "fraud convict" designation. In 2009, the Federal Court granted the orders requested by Black and the government appealed. Hearing his appeal in October 2009, the Federal Court of Appeal found Day in contempt. Day then sought to purge himself of the contempt finding and asked the Court to reduce the $350,000 cost sanction previously imposed against him.
In its decision, the Court found that Day failed to comply with the undertaking made to the trial judge and had thus "invited the Court to fit a square peg into a round hole" in order to resolve the issue of his expenses. Noting that it was important for judges to maintain the appearance of impartiality, including the appearance of deciding cases on the weight of the law rather than public opinion, the court upheld the original $350,000 sanction, declining to reduce the amount.
Legal Assistance
It is extremely important to obtain legal advice if you or someone you know is facing the possibility of being held in contempt of court. A lawyer familiar with the laws and processes in the relevant jurisdiction can advise readers on their rights, obligations, and applicable defenses. By seeking competent legal advice , you will be able to assess the likelihood of a contempt finding in your case and prepare a strategy to defend against any allegations. Legal counsel can further advise parties on the ramifications a contempt finding will have in their specific circumstances and the steps necessary to overcome the potential obstacle of contempt.
Readers can also refer to other resources on this blog. We have written about the elements of contempt and the differing opinions on whether sanctions for contempt should be criminal or civil in nature. Readers may also refer to outside sources such as the Child Welfare Information Gateway, which has published a report on issues regarding contempt in child support proceedings. The Child Welfare Information Gateway website is accessible at www.childwelfare.gov.
