Massachusetts Family Court Parenting Class Prior to Filing Contempt

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

Today nosotros present Role 2 of our web log serial on Complaints for Antipathy in Massachusetts Probate and Family unit 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 fourth dimension in Massachusetts Probate & Family Courts. Check out Function 1 of the series for our comprehensive overview of Complaints for Contempt in Massachusetts and Part 3 for our review for Complaints for Antipathy violations of fiscal orders.

The basic legal standard used by probate courtroom judges when reviewing a complaint for contempt for alleged violations of parenting orders is identical to the legal standard used in the review of fiscal violations, such as a party'southward failure to pay child back up or alimony. Even so, a parenting contempt differs significantly from a financial contempt in several important respects, which are reviewed beneath.

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 antipathy of a parenting order, the plaintiff must present "clear and convincing bear witness 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 tin be reasonably understood to have more than than one pregnant, or is otherwise cryptic, the defendant should not be establish in contempt. 2d, at that place must be clear and convincing prove that the defendant disobeyed the society.

A party tin can be establish in contempt even if he or she did not "willfully" violate the order. That said, a political party who reasonably believes his or her conduct did not violate the social club may be able to convince the judge that the significant of the order was ambiguous enough to forestall a finding of contempt. Although there are several defenses to a complaint for contempt, the well-nigh common defence is probably a defendant's claim that he or she had an "inability to comply" with the order, which the defendant must provide by articulate and convincing evidence.

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

There are several important Massachusetts cases that accept 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 "fairly supervise" her children provided insufficient clarity and find for the female parent to exist found in antipathy, where the phrase "fairly supervise" could be subject area 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 acquired father to abolish the trip, where female parent did not really preclude the begetter 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 female parent was in contempt for failing to produce the child for a scheduled vacation visit with the male parent, where mother'south merits that the kid was too sick to nourish was unsupported by sufficient prove demonstrating that she was unable to comply with the order. Notably, the mother in O'Connell produced several doctor'due south notes suggesting the kid 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 non 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 kid'southward affliction and the md's instruction as a permissible basis for her election not to allow the father to take the child during the required visitation flow.

Nonetheless, the Court held that the md's notes provided insufficient evidence of the mother'south inability to comply with the parenting order:

A putative contemnor may no doubt avert a finding of antipathy if she meets her brunt of proving her disability to comply with the relevant court order. But the female parent'south evidence in this case falls far short of showing an inability to comply. She failed to show, for case, that the sick kid could not take rested simply as quietly and comfortably with the father as with the mother or that transportation between the female parent'due south house and the begetter'southward would accept exacerbated his illness or retarded his recovery. There is no showing that she even inquired of the physician on those subjects. Her failure to practise so dooms her effort to upset the contempt judgment on grounds of disability to comply, particularly given the guess's unchallenged finding that the male parent had "proven … that he [was] equally capable of addressing [the child's] medical needs" and that the mother "refuses to involve [him] in [the kid's] medical treatment." (Citations omitted).

It should exist noted that the O'Connell Court expressly referenced the mother'southward prior comport, every bit well as the parties' lack of ability to cooperate in other ways, in making its findings. There is little dubiousness that the Court's farthermost skepticism towards the female parent's position regarding the kid'due south disease 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 exist obeyed unless a accused 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 antipathy 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. Cryptic Visitation Orders and Complaints for Antipathy

As the Appeals Court pointed out in Sax v. Sax (2002), ordinarily, "[a]mbiguities are regularly resolved in favor of the declared contemnor". This is to say, if an order is ambiguous, this more often than not favors a defendant in antipathy proceedings. However, the instance of Hernandez v. Branciforte (2002) provides a cautionary tale, where even a somewhat ambiguous understanding or order may be sufficient for the court to detect antipathy if the unclear club was originally drafted by the defendant or defendant's order:

Although the stipulation and separation understanding dealing with visitation are not models of clarity, nosotros recall that they were sufficient to apprise the mother of her obligation to facilitate visitation during the father's Feb vacation from his educational activity position. This she failed to do, and she does non challenge the judge's decision to construe any ambiguities against her considering she drafted the stipulation.

Granted, the Hernandez Court leaves open the possibility that the outcome could have been dissimilar had the female parent chose to "challenge the judge's determination to construe any ambiguities against [the female parent] because [the mother] drafted the stipulation." But the example 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 understanding.

Part 4. Applied Considerations: What will a Probate Court Guess Really exercise about a Parenting/Visitation Violation?

As noted in O'Connell, a probate and family courtroom judge can order a modify in custody if one parent'due south conduct amounts to an endeavor 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 and so egregious that they warrant a change in custody. This frequently 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 tin can be stressful, time-consuming and expensive for parties. Moreover, a estimate may non 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 kickoff that the legal standard for a finding of contempt is largely stacked in the defendant'southward favor. The need for a clear and unambiguous social club, likewise as a clear violation of the lodge, are designed to ensure that the court'due south contempt powers are but exercised when absolutely necessary. The practical reality in probate court is that judges are oft quite cautious about finding parties in antipathy, not just because of the legal standard, simply considering judges fearfulness triggering a "tit for tat", in which both parties continually render to court over every small parenting dispute. Lastly, judges are mindful of the limited remedies they have for pocket-sized parenting infractions; a judge will frequently enquire, somewhat incredulously, what do yous really want me to do about this violation? Indeed, it is not uncommon for a gauge to lecture both parties – even when one party has conspicuously 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 antipathy 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 human action moving forward. The judge may choose to club the parent in violation to pay the reasonable legal fees and costs of the other parent; and then again, they may not. For a kickoff-fourth dimension offender, the judge is unlikely to change custody or radically rework the parenting schedule, although a judge may tweak the schedule to accost whatsoever obvious problems. The penalization is unlikely to be harsh. For many parents, this again begs the question: what is the indicate of filing a antipathy if the guess is not going to punish the defendant?

Part v. The Power to Change and/or Clarify Orders Through Contempt Proceedings

In the parenting context, a probate court'southward most powerful tool in contempt proceedings is the power to modify or analyze the parenting schedule through the contempt proceedings. Probate Court judges rarely distinguish between the similar powers of "description" vs. "modification", merely Massachusetts instance police suggests they arise out of different bodies of law.

The probate courtroom approximate'southward dominance in antipathy proceedings to "clarify" the parties' grows primarily out of contract police force. In Cooper v. Keto (2013), the Appeals Court held that a former hubby's conduct was inconsistent with the intended purpose of the parties' divorce agreement. Considering the provision in question was cryptic 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, still, the Courtroom was well positioned to clarify the contested provision, which ultimately led to orders requiring the father to comply with mother'due south interpretation of the agreement. The central indicate 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 gauge inbound orders for clarification must invariably make up one's mind how the parties should proceed moving forward. This sometimes means "splitting the difference" between each political party's view, just more than often, the gauge will adopt one party'south position, and so enter an order for clarification declaring that the parties will comply with said position moving forwards.

A probate court judge'due south potency to alter parenting orders through contempt proceedings arises out of two split up bodies of police force. The kickoff and most straightforward manner that a judge can modify an lodge through contempt proceedings is if evidence is presented establishing that a substantial alter in circumstances has occurred that warrants a modification. Where a substantial change in circumstances is the legal standard for modification in Massachusetts, a gauge may change the guild if the standard is met, even if show is heard through a contempt. All the same, judges must be cautious when exercising this dominance in contempt proceedings where a defendant is entitled to detect of the other political party'due south asking for modification, and a defendant's grooming for a contempt action may differ significantly than his or her training for a modification activeness.

In the seminal case of Furtado v. Furtado (1980), the SJC noted that "[c]ivil contempt proceedings are 'remedial and coercive,' intended to accomplish compliance with the courtroom's orders for the benefit of the complainant." In LABOR RELATIONS COMM. v. FALL RIVER EDUCATORS'ASS'Northward (1981), the Court explained:

Unlike a criminal contempt which is punitive, to vindicate the potency of the court, a civil contempt order is intended to exist remedial and for the benefit of an aggrieved political party. …. For this reason, both compensatory and coercive orders are considered to be in the nature of civil antipathy. … "Remedial or compensatory actions are essentially backward looking, seeking to compensate the complainant through the payment of money for damages caused past by acts of defiance. Coercive sanctions, in contrast, look to the futurity and are designed to assist the plaintiff past bringing a defiant party into compliance with the court club 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 social club would involve granting the plaintiff "make-up fourth dimension" for whatsoever parenting fourth dimension the plaintiff lost as a effect of the defendant'south actions. The courtroom'due south potency to enter coercive orders is a more powerful tool. In club to discourage the accused 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 information technology is in the kid's best interest:

[I]n the face of 'overwhelming undisputed bear witness of hostility between the parents and their disagreement on matters pertaining to the child,' the child'due south best interests, always the paramount concern, are likely better served by ending the articulation custodial organisation, 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.

Role half dozen. The DUI Analogy: Three Strikes and You lot're Out?

I mode for parties to think about contempt violations is by comparison with drunk driving offenses. As virtually Massachusetts residents know, an individual'due south first DUI arrest or conviction does non result in harsh punishment. The offender may be offered a hardship license by the Court, and the mandatory license intermission is a relatively moderate 45 days. The articulate bulletin for every first fourth dimension DUI offender is this: you are getting off easy this time – don't let information technology happen again.

Like DUI convictions, findings of contempt in the Probate Court can take a cumulative effect (although there is no analogy to Melanie'due south Law for multiple contempt findings). The first fourth dimension a political party is found in contempt, the penalization is unlikely to be overly harsh. Like DUI offenses, however, a 2d finding of antipathy against a parent will upshot in a significant sterner response. And a third finding of contempt may crusade a gauge 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 equally an opportunity to obtain the "outset strike" in the 3-strikes analogy with DUI offenses. The downside to this approach, of form, 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 consequence to endeavor to make certain that (a.) the parenting order is very clear, (b.) the opposing political party clearly violated the social club, (c.) the defendant has no defense against a contempt, and (d.) the plaintiff has non violated any orders that would invite a retaliatory complaint for contempt past the accused.

Role seven. Mutual 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 tin can argue in a contempt proceeding. Roofing every potential defense would require its ain blog, and then instead, we will review some of the more mutual defenses involving alleged parenting violations.

a. The Inability to Comply Defence

As shown in O'Connell, parties may have a more than hard time proving "inability to comply" with parenting orders than with financial orders. Inability to comply is a very fact-specific defence, 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 motorcar, canceled flight or a work-related effect that legitimately prevents a parent from making a pickup or drop-off. Even so, an inability comply defense force carries substantial risks where, different the ordinary burden proof in a contempt activity, which requires the plaintiff to provide clear and convincing evidence, an inability to comply defense places the burden of proof squarely on the accused to prove his or her defense.

b. The Consent/Waiver Defense

A second mutual 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 non uncommon for defendants accused of contempt to present a text bulletin or email from the plaintiff showing that the parties agreed to modify the schedule. The plaintiff'southward consent to the change in the schedule thus provides a defence confronting the alleged violation. (The concept of "waiver" is similar to consent; i.e. the plaintiff agreed to waive his or her parenting time by understanding.)

A consent/waiver defense often depends on the quality of the evidence: a clear email showing the other political party agreed to a change is best, a muddled text message exchange less skillful, and testimony nearly an alleged oral agreement worse yet. Obviously, information technology is helpful if the defendant can detail any "extra fourth dimension" the plaintiff received every bit function of the agreement. The consent/waiver defense is not risk-free, yet. In club 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 alter and "disobedience". In addition, a consent/waiver defense is not allowed from rebuttal by the plaintiff, who may argue that he or she revoked their consent, or that the accused failed to live up to the defendant'southward side of the bargain.

If a parent reasonably relies on the other parent'due south agreement to alter the parenting schedule, and effectively captures the understanding in writing, a consent/waiver argument can be highly effective. The defense is almost constructive when a defendant presents an email confirming that he or she confirmed the agreement with the plaintiff immediately before deviating from the parenting programme. A plaintiff who invites a defendant to alter the parenting plan – then files a complaint for contempt after the defendant relies on his or her invitation – generally volition non be viewed favorably by a judge.

c. In that location is no "Cure" Defence for the Violation of a Parenting Club

1 feature of a parenting antipathy that sets it apart from a financial antipathy (i.eastward. failure to pay child back up or alimony) is that a political party can oft "cure" a financial violation by paying the corporeality due whatsoever time before the hearing. This is not the case with parenting violations. For example, in Cooper v. Cooper (2004), the Appeals Courtroom noted that "an adjudication of contempt is precluded by the approximate's finding that [a party] eventually did pay the coin, and has purged his contempt prior to the hearing." As such, a party who pays his or her kid support or alimony arrears before the hearing cannot be found in contempt (although they can still exist ordered to pay legal fees).

In most cases, even so, a political party is unable to "cure" his or her violation of a parenting guild prior to the hearing. If, for example, the accused prevents the plaintiff from enjoying 8 hours of parenting fourth dimension on Mother's Mean solar day, this violation cannot be cured, considering Mother's Day is a unique issue that cannot be replaced with "make-upward time".

The inability of a defendant to cure a parenting violation can arrive easier for a plaintiff to obtain a judgment of contempt on a parenting outcome versus a financial upshot. (Notably, contempt actions involving parenting violations do not offer defendants the "disability to pay" defense force 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 antipathy to pay the reasonably legal fees and costs of the plaintiff but applies to accused's who fail to make monetary payments. Specifically, Ch. 215, s. 34A provides:

In inbound a judgment of antipathy for failure to comply with an order or judgment for monetary payment, at that place shall exist a presumption that the plaintiff is entitled to receive from the defendant, in add-on to the judgment on budgetary 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 chaser's fees and expenses unless the probate gauge enters specific findings that such attorney's fee and expenses shall non be paid by the accused.

Probate and family court judges take broad say-so to order a accused establish in contempt to pay the legal fees and costs of a plaintiff that arises out of the gauge'due south authority to enter remedial and coercive orders in contempt actions. Unfortunately, many probate and family court judges are hesitant to honor fees for parenting violations, fifty-fifty 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, nevertheless, if in that location is no financial component to the complaint, the chances of obtaining a fee laurels are iffy, at all-time.

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 fiscal orders. In our practise, 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 defiance are exceptionally clear. If the plaintiff'southward 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 bear upon the violation had on the plaintiff and/or children – oftentimes matters less than the plaintiff'due south technical ability to demonstrate the existence of a clear and unambiguous club and equally clear disobedience of the society.

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 besides a mediator for South Shore Divorce Mediation.

Schedule a consultation with Jason 5. Owens today at (781) 253-2049 or ship him an email.

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Source: https://www.lynchowens.com/blog/2016/june/complaints-for-contempt-for-violations-of-visita/