The ramifications of violating a temporary or permanent child custody order are significant. This post addresses conduct that subjects a parent to a contempt finding by a Probate and Family Court. Additionally, penalties and remedies for defying custody orders are examined.
Child Custody Options
Sole legal custody empowers one parent to decide major issues concerning that parent’s child. Such decisions involve the child’s religious upbringing, education, health care and emotional needs. Shared legal custody means both the child’s parents have an equal say in these choices.
Another type of child custody order awarded by a Probate and Family Court judge is sole physical custody. Under such an arrangement, a child resides with one parent. The noncustodial parent has access to reasonable parenting time. This includes visitation, unless such interaction is not in the child’s best interests.
Shared physical custody is another form of child custody. Under this arrangement, a child maintains an ongoing relationship with both parents by residing with each for certain periods. See our previous post about custodial parent’s rights.
Best Interests of the Child
By statute, a probate judge determining a child’s best interests must weigh whether evidence of past or present spousal or child abuse exists before granting temporary or permanent child custody. Other “best interests” factors judges consider include whether a parent is a primary caregiver, a child’s relationship with both parents, and whether abandonment or substance abuse is at issue. When a child is mature enough, residential preference is solicited.
Defying Court Orders
There are numerous ways to violate enforceable child custody and visitation agreements. Repeatedly returning a child late to the other parent following visitation and not observing agreed on education and religious upbringing decisions may be actionable. So too is engaging in substance abuse while overseeing a child. Disobeying court-ordered medical treatment for a child is a violation. Other infractions include taking a child on an out-of-state trip without prior permission, obstructing a parent’s custody or visitation rights, or using an unauthorized child care provider. Of course, nonpayment of child support is a cardinal violation.
Remedies
Communicating between the parties and their counsel, in a mediation setting is a cost effective solution. Courts prefer not to intercede in spousal spats about late drop-off times of 5:15 p.m. instead of 5 p.m.
However, sometimes substance abuse, physical abuse, withholding visitation or nonpayment of child support underlies the custody order violation. If so, the non-offending party should file a contempt complaint with the Probate and Family Court.
Depending on the circumstances of the violation and the offending party’s history of behavior of abiding by or ignoring the custody agreement, a judge has many enforcement tools. See our earlier post, Enforcement of Child Support Orders. The judge determines the past due amount on child support.
When a parent is adjudged in contempt, there can be an order to pay the other parent’s legal fees to enforce the custody order. A parent delinquent in paying child support, health insurance or making mortgage payments on the marital home could face garnishment of wages through the Department of Revenue.
Violating a custody order
Suspension of a driver’s license or impeding the obtaining of a passport can be ordered by the Court until the offending parent makes back payments. An option for a violator is blocking them from receiving professional and other licenses issued by the Commonwealth. In severe cases, such as defying a restraining order, an arrest warrant can issue and jail time can be meted out as punishment.
Elements of a contempt action initially involve proof that a court order is in place. When there is a violation of a court order, evidence is identifies that the violator is capable of compliance.
Probate judges addressing a Complaint for Contempt must evaluate whether the transgressor’s contempt is willful. In other words, is the offending parent disrespecting the Court and deliberately violating the terms of the negotiated custody agreement adopted by the Court. By comparison, non-willful contempt may result from an ex-spouse lacking the funds to stay current on support payments. In such cases, non-punitive remedies may be employed by the Court.
Uniform Child Custody Jurisdiction and Enforcement Act
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is for violations that cross state lines. Drafted in 1997, 49 states and the District of Columbia have adopted the UCCJEA.
Probate courts are somewhat circumspect and do not wield their contempt powers like a club. In Hardiman v. Hardiman (2016), for instance, the Massachusetts Appeals Court overturned a probate judge’s contempt finding against the mother in a shared legal custody case. The dispute concerned the father’s insistence that the couple’s three children continue a parochial school for which he paid tuition. The mother favored enrolling her daughters in public school. The Appeals Court faulted the probate judge for not specifying in detail the mother’s alleged willful disobedience.
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