Just like any other order of the court, custody orders are subject to a finding of contempt of court if they are not followed. Penalties for those found to be in contempt for violating a custody order can range from payment of the other parties attorney fees to jail time, depending on the number of violations and whether the contempt allegation remains a civil matter or criminal charges are filed. This blog discusses contempt of court and consequences for violating custody orders.
The Indiana parenting time guidelines are based on the premise that it is usually in a child’s best interest to have “frequent, meaningful and continuing contact with each parent” (Ind. Par. Time. Guid. prmb). A parent may not withhold parenting time because the other parent is behind on child support payments, recently moved in with a new girlfriend or boyfriend, or is not complying with certain non-court ordered conditions or demands. A list of some other unacceptable reasons to withhold parenting time is contained in the parenting time guidelines and includes such excuses as the child has a minor illness, the child has to go somewhere or is not home, or the weather is bad (Ind. Par. Time. Guid. I(C)(1) comm.). It is important for children to have consistent and regular time with each parent. When they do not, they may come to believe that the parent missing parenting time does not consider them a priority (Ind. Par. Time. Guid. I(C)(1) comm.).
Indiana law provides recourse for parents who are refused their parenting time by the child’s other parent. In both divorce and juvenile paternity cases, a parent who is refused parenting time by the child’s other parent may ask the court for an injunction against the parent denying the parenting time if (1) they have been granted parenting time rights with a child who lives with the denying parent, (2) regularly pay child support, and (3) are being denied their parenting time by the other parent (I.C. 31-17-4-4 and I.C. 31-14-15-4). An injunction is an order of the court requiring a person to do or refrain from doing some specific thing, such as denying parenting time to the child’s other parent. Until a hearing can be set, the court may issue a temporary restraining order, restraining the parent from further violation of the parenting time order (I.C. 31-17-4-5). If a permanent injunction is granted and parenting time is denied after the order granting the injunction, the party being denied parenting time may then ask the court to hold the other in contempt of court. When a court finds that a parent has intentionally violated a parenting time order without justifiable cause, it will hold the parent in contempt of court and order that the missed parenting time be made up at a time the court finds suitable in light of the parties schedules. It may also order the parent to pay the other’s attorney fees and/or perform community service (I.C. 31-17-4-8).
Another option for a parent being denied parenting time is to initiate indirect contempt of court proceedings under the civil, instead of the family law statutes. Proceedings under the civil law statutes are governed by disobedience of process code (I.C. 34-47-3-1) which provides that a person guilty of willful disobedience of a lawfully issued order is guilty of an indirect contempt of the court that issued the order. If the party against whom the proceedings were begun either fails to appear for hearing, or does not offer a denial or sufficient explanation of the facts which led to the filing of the contempt proceedings, the court may fine and/or jail the guilty parent (34-47-3-6). When using this process for the enforcement of parenting time orders, it is not likely that the court will fine or jail your other’s parent’s the first time you bring the action. Rather, it is better to utilize contempt proceedings under the civil law code if you have been denied parenting time on several recent occasions or you have used the family law process more than once, and are still unable to exercise your parenting time.
Criminal charges may also be brought against a parent for interference with custody if the prosecutor wishes to file them. This should be a parent’s last resort, as the state does not have the time or money to charge every parent who withholds parenting time with a crime, when there are civil remedies available. Interference with custody occurs when a person, with the intent to deprive another of custody or parenting time, knowingly or intentionally takes, detains, or conceals a child less than 18 years of age (I.C. 35-42-3-4). The offense is a class B misdemeanor, punishable by up to 180 days imprisonment and up to a $1,000 fine (I.C. 35-50-3-3).
Finally, it is critical that parents understand what withholding parenting time is and what it is not before using any court procedure to remedy a situation. A parent is withholding parenting time when they refuse to allow you to have the child when the court order dictates that it is your time to have the child. The refusal must be for a non-justifiable cause, for a large part of or all of your scheduled time for the day, and not accompanied by any offers for make-up time. A parent is not refusing parenting time when they are a few minutes late for drop off or pick up, bring the child home a couple of hours after the scheduled drop off time because the ball game they took the child to went into overtime, they had mechanical issues with their car, or were stopped in traffic due to an emergency situation causing congestion on the road. The court expects parents to be able to cope with these type of life situations without eliciting its assistance.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.
