When is the right time to file for contempt?

I often end up in Court representing someone who either is filing for contempt or is on the receiving end on a contempt.  Most of the times the process is being misused by the other party who ignorantly filed a contempt action thinking the other party doing what they are obligated to do under the law. In my 18 years of practice rarely do contempt actions succeed unless child support is involved.  Most people however, pull the trigger and file a contempt on the other party when the child arrives late for a visitation or violates some custody order.

The elements of a contempt action are 1) a valid prior order 2) knowledge of that prior order 3)ability to comply with the order and 4) lastly willful failure to comply with the order.

Often the first element of contempt is easy to demonstrate to the Court that there is a valid prior order.  All you need to do is provide a copy of the prior Court to your affidavit for Contempt when you file the action.  There might be difficulty in the order if it is not clear, specific and “unequivocal.” This actually is a big problem in contempt actions.  The vagueness of an order can be a big sticking point with the Judge in finding any violation of a prior order if it is vague on its face.

Next the party must prove that the citee knew of the prior court order.  This again is not the too difficult to prove in that the Court needs to see that either the citee appeared in Court while the order was being issued by the Judge or that the person was personally served with the order.

Thirdly, and I believe the most important element of proving a contempt action, the ability to comply with the prior order. Here is where there is a lot of defenses to violation of any contempt action. There must be a present inability to comply with the current court order.  Therefore at the time the order went into effect and the party was able to comply cannot prove a violation. In custody cases often this is the most difficult element to comply.  Because the exchange of the custody of children often is fraught with difficulties whether it be getting children ready for the exchange or a difficult child who doesnt want to go to the other parent. That is why in a contempt action a party must have strong case when filing for a violation of a custody order.

When it comes to violations of child support.  The laws for contempt are less stringent are and require only that there is a valid court order, there was knowledge of the order and the party did not pay.  That is why it is much easier to succeed in a contempt violation against failing to pay child support.

Finally the last element, willful failure to comply is again difficult to prove as you need to show the act was willful.  That requires getting into the mind of the other party and prove their intent. It would seem a very difficult task.