Thursday, May 22, 2008

Enforcing Parenting Time: Contempt

What to do if you are denied your parenting time?

For a more general overview take a look at my What if the custodial parent interferes with visitation?. I am writing more about the procedure of contempt here.

Filing a contempt citation is the usual remedy. The affidavit must say that there was an Order granting parenting time and that the custodial parent has acted willfully and intentionally in not allowing the non-custodial parent their parenting time. The affidavit must state specific facts showing how and when the custodial parent denied the non-custodial parent their parenting time rights.

Parenting time includes visitation and a bit more. About what those parenting right are, see my articles on parenting time starting with Examining Indiana's Parenting Time Guidelines: The Preamble.

This affidavit is filed with the court along with a document called a Citation (the Delaware County Clerk has a general purpose Citation here). A date is set for the hearing and then the court has the Affidavit and Citation served on the custodial parent.

No one can be held in contempt without getting a copy of the Affidavit and a chance to be heard - that is our constitutional right to due process.

Good service means that the custodial parent had received a copy of the Affidavit. If the custodial parent does not show up for the hearing after good service, then the court will go ahead and hear the case. No service means getting another date, attempt service again, and wait.

At the contempt hearing, the custodial parent has the burden of proof showing that they did not act willfully and intentionally in disobeying the court's order. That defense depends on the facts of each case. That the child does not want to go with the non-custodial parent is not a defense. See my post here on the subject of child hesitancy.

Hopefully, the custodial parent hired a lawyer. The penalties for contempt can include jail. The non-custodial parent who wins their case can expect an order for attorney fees. The non-custodial parent needs to pay attention to IC 31-17-4-3(b):

In determining whether to award reasonable attorney's fees, court costs, and other reasonable expenses of litigation, the court may consider among other factors:
(1) whether the petitioner substantially prevailed and whether the court found that the respondent knowingly or intentionally violated an order granting or denying rights; and
(2) whether the respondent substantially prevailed and the court found that the action was frivolous or vexatious.

I would ask that if you have anything to say about any experiences with the Indiana Parenting Time Guidelines that you use the Comments function below. It may be a benefit to others.

If you want to read my previous articles on parenting time, just click the link below next to word Label. If you need an attorney for a parenting time case, give me a call.

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