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# 57 - Contempt vs. Motion for Enforcement of Parenting Time Order

LDG Monograph # 57                           March, 2007; revised May, 2010

CONTEMPT vs. MOTION FOR PARENTING TIME ORDER

By Lawrence D. Gorin, Attorney at Law, Portland, Oregon

Question
    The question has been asked:  What is the appropriate procedural remedy for dealing with parenting time violations?  Do I file a show cause motion for remedial contempt under ORS 33.055?  Or a motion for enforcement of a parenting time under ORS 107.434?  Or do I file both?  Or does it matter?

Answer
    ORS 107.434  --- Expedited parenting time enforcement procedure ---  is indeed the proper remedy.  This is (with rare exception) the best and most appropriate and effective statutory remedy for dealing with parenting plan violations.  The statute was enacted specifically for the purpose of dealing with this situation.

    Most parenting plan violations, if closely analyzed, involve completed specific acts of disobedience to a court order for which belated compliance provides no cure.  Thus, a contempt proceeding seeking to impose a remedial sanction, i.e., a sanction that is intended to compel compliance to a court order that is presently being disobeyed, ORS 33.015(4), just does not seem to “fit.”  And while punitive sanctions, i.e., sanctions intended to punish the contemnor for past acts of contumacious conduct, ORS 33.015(3), might be appropriate to the situation, such sanctions may not be sought (or imposed) in contempt proceedings initiated by private litigants.  See ORS 33.065(2); Dahlem and Dahlem, 117 Or App 343, 844 P2d 208 (1992) (trial court had no authority to hear contempt proceeding filed by former husband seeking punitive sanctions on former wife for failing to comply with visitation provisions of dissolution judgment); and Miller and Miller, 204 Or App 82, 129 P3d 211 (2006) (confinement for 10-day definite period of time not available as a remedial sanction in contempt proceeding by wife against husband for failing to comply with obligations under dissolution judgment).

    As a practical matter, when problems arise in exercising parenting time rights, many litigants (and lawyers as well), acting out of haste and frustration, proceed full-speed ahead with contempt proceedings ostensibly seeking the imposition of “remedial sanctions.”  And in doing so, all too often little if any thought is given to the actual imposition of a specific and particular “remedial sanction,” i.e., “a sanction imposed to terminate a continuing contempt of court.”  ORS 33.015(4).  What the moving party really wants is not a “fix” (i.e., a remedy) for an existing problem; rather, what is really sought is judicial condemnation of the offending party (“I hereby find you in contempt.”) and the infliction of a punitive sanction, i.e., punishment.

    PRACTICE TIP:  When on the receiving end of a contempt motion seeking remedial sanctions, call the opposing counsel and inquire as to just what specific and exact remedial sanction(s) the moving party would like to see imposed in order to remedy the existing problem, thus bringing the “continuing contempt” to an end.  This will hopefully motive opposing counsel to focus on resolving a problem rather than merely seeking vindictive action.

    Contempt proceedings ought to pertain to contempt of the court, not one parent’s contempt for the other parent. The image of mommy being hauled off to jail at the behest of daddy, all while Lil’ Timmy stands by, watching and crying, is just not the best way to deal with parenting time violations.  Indeed, avoiding such situations appears to be the primary reason for the enactment of ORS 107.434.  Just as contempt proceedings should not (and can not) be used to enforce property division money awards, ORCP 78 B and C, they likewise should not be used to enforce parenting plan violations.  ORS 107.434 is far better suited to deal with the problem.  

    Further, ORS 107.434 provides the court with a far greater range of options for resolving parenting time problems in contrast to a contempt proceeding. Just look at all of the remedial actions that the court has in an ORS 107.434 proceeding, all available without any need to resort to “contempt warfare” and the rancor usually arising therefrom in order to get to the point of enabling the court to do something about the problem:

    ORS 107.434 (2):  In addition to any other remedy the court may impose to enforce the provisions of a judgment relating to the parenting plan, the court may:
    (a) Modify the provisions relating to the parenting plan by:
    (A) Specifying a detailed parenting time schedule;
    (B) Imposing additional terms and conditions on the existing parenting time schedule; or
    (C) Ordering additional parenting time, in the best interests of the child, to compensate for wrongful deprivation of parenting time;
    (b) Order the party who is violating the parenting plan provisions to post bond or security;
    (c) Order either or both parties to attend counseling or educational sessions that focus on the impact of violation of the parenting plan on children;
    (d) Award the prevailing party expenses, including, but not limited to, attorney fees, filing fees and court costs, incurred in enforcing the party’s parenting plan;
    (e) Terminate, suspend or modify spousal support;
    (f) Terminate, suspend or modify child support as provided in ORS 107.431; or
    (g) Schedule a hearing for modification of custody as provided in ORS 107.135 (11).

    With all of that available, why resort to a contempt proceeding?  What is it that can be accomplished through a contempt proceeding (other than jail time, which generally is not appropriate for a parenting plan violation anyway) that cannot be accomplished by an ORS 107.434 proceeding?  

    In contrast to contempt proceedings, a proceeding under ORS 107.434 is cheaper, quicker, easier (court provides the do-it-yourself forms), and far less onerous on the adverse party, and on the judge, and ultimately on the child involved.  And unlike contempt, which requires that the contumacious conduct to be proven by no less than “clear and convincing evidence,” ORS 33.055(11), you really don’t need much of an evidentiary showing to obtain judicial relief through a parenting plan enforcement proceeding under ORS 107.434.  Filing a motion seeking relief under ORS 107.434 is far less adversarial in contrast to a contempt proceeding and will usually not cause the level of heightened defense reaction that arises in response to a contempt motion.

    PRACTICE TIP:  When a parent voices complaints about the other parent’s violations of parenting plan provisions and asks you to “file for contempt” against the other parent, your inquiry ought to be: “Why?  Why contempt?  What is it that you want the court to do for you in order to resolve the problem?”  (NOT “What is it that you want the court to do to your ex-spouse?”)  

    Children are the ones who suffer from the problems arising from parental conflicts involving parenting time violations.  No need to aggravate the situation and add insult to injury  by attempting to use the “hammer” of contempt to solve the problem when a far more reasonable, appropriate, and specific, remedy is readily available.

Conclusion
    What is the appropriate procedural remedy for dealing with parenting time violations?  Obviously, the appropriate procedural remedy is a Motion Seeking Enforcement of Parenting Time Order, as allowed by ORS 107.434.

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LAWRENCE D. GORIN
Attorney at Law
6700 S.W. 105th Ave., Suite 320
Beaverton, Oregon  97008
Phone:  503-716-8756
Fax:    503-646-1138
E-mail:  LDGorin@pcez.com
http://ldgorin.justia.net/index.com