To be or not to be… In contempt!

Can you believe that a child would be denied contact with their parent?  It happens and it appears to happen alot.  So what can be done?  Well Contempt of course.  If you have a Permanent Parenting Plan that outlines your parenting time, and the other parent does not allow you to exercise that time, without cause, they are in contempt.  It sounds simple enough, but there’s more.

I won’t belabor the details of this subject, because it can bring on a few snoozes.  But it is important to note that there are two types of contempt: civil and criminal.  Criminal contempt is essentially treated as a crime.  That is, a person charged with such, is afforded certain constitutional rights, namely the right to be represented by counsel (appointed if necessary).  Also, it requires proof beyond a reasonable doubt.  This is a very high legal standard.  Civil contempt is much more civil, to be redundant.  The proof standard is preponderance of the evidence.  Essentially, a court must find more likely than not that it happened.  Not a very difficult threshold.

The funny thing is that both types carry the same punishment. Being found guilty of either type can result in 10 days in jail and/or a fine up to fifty dollars per count of contempt.  Now the real difference is what is sought to be accomplished by the contempt.  If the court seeks to punish the contemnor for disobedience of its Order, it must be criminal contempt.  “[c]riminal contempt is used to preserve the power and vindicate the dignity and authority of the law as well as to preserve the court as an organ of society.” Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996).  Don’t know about the organ of society part of that quote, but Courts have the power to punish you if you don’t obey.  If not, a court issuing an order would be an exercise in futility.

On the other hand, if the object of the contempt is to coerce the contemnor to comply with the Order to vindicate a private right, i.e. a parent’s right to visit their child, then it is civil contempt.  Every law student and most people have heard that, “one in civil contempt, holds the keys to the jail.”  Comply and ye shall be free. That is true, and must be true to be civil contempt.  The ability to purge oneself of contempt at the time of the hearing is a requirement.

After extensive research in the field, I have come to prefer civil contempt.  This is for three reasons.  First, the standard of proof is much lower than that of criminal contempt.  It is obvious that it is much easier to prove contempt if you don’t have a high burden.  Lower burden means more wiggle room with regard to proof.

Second, the person charged with contempt does not have the right to have counsel.  That does not mean that they cannot hire an attorney to represent them.  It simply means that the contemnor will not be appointed an attorney if indigent, and the failure to hire an attorney should not delay the proceedings.  (Although, this does bring up the issue of trying a case against a pro se litigant… post soon to follow)

The third and final reason for preferring civil contempt is the ability of the Court to award attorney fees.  If proceeding under criminal contempt, the Court is not allowed to award attorney fees, in most cases.  There are a few instances which the Court could do so, but they have to be specifically provided for in the Tennessee Code.  (It is possible when attacking or defending custody orders under Tennessee Code Annotated Section 36-5-103(c) if deemed the prevailing party).  Because civil contempt is considered remedial in nature, attorney fees are often awarded.  There’s nothing more satisfying than winning a case and then giving money back to your client.

Now apply all this to a petition for civil contempt against a parent who is failing to let their child visit the other parent.  You have to have a valid order to begin. That order must be clear, specific, and unambiguous. The person charged must have had the ability to comply with that order and wilfully failed to do so. If that can be established, vindication may be en route. In addition to the other remedies, a Court may award the parent harmed extra parenting time to make up for the lost time as much as possible.

If you find yourself in a similar situation and are being denied your parenting time, give me a call.  Consultations are free and I would be glad to help. 

Brandon J. Cox, Esq.
201 West Main Street
Smithville, Tennessee 37166
(615) 597-5297