Washington

Contempt of Court in Family Law Cases: The Basics

Authored By: Northwest Justice Project LSC Funded
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Introduction

This publication has general information about Washington law on contempt in family law cases.  It covers only the type of contempt most common to family law cases, called "coercive civil contempt."[1]

*This publication does not cover other kinds of contempt, such as contempt committed in the courtroom and a contempt request filed by the government to punish someone for violating a court order.

The main goal of "coercive civil contempt" is to make the person violating a court order obey that order in the future.[2]

*This publication is not a substitute for individual legal advice.  We cannot tell you how a court will apply the law in your case.

What is contempt?

It is the intentional disobedience of a court order.[3]

What can lead to contempt?

Violating the residential time in a parenting plan or residential schedule might be contempt. Examples:  

  • one parent refuses to allow visitation stated in the parenting plan.

  • one parent will not return the child to the other at the end of visitation.

  • one parent fails to make reasonable efforts to require a child to visit the other parent at the times stated in the parenting plan.[4]

Contempt can happen by action (such as violating a restraining order) or failure to act (such as not paying ordered child support or spousal maintenance). 

You can also use contempt to force the other party to deliver property to you, if a court order required the delivery.[5]

You can use contempt during a divorce, parentage, or non-parent custody action to enforce final orders from a court or administrative agency. You can also use contempt to enforce temporary family law orders and restraining orders.

*You cannot always use contempt to get what you want.  Examples:  you cannot use contempt to force property settlement payments, unless they are related to child support or maintenance.[6] You cannot use contempt once a court order has ended or been changed.[7]

Contempt is a severe remedy.  You should not use it routinely.  Contempt is also not always the best or most effective remedy. Sometimes it just makes a conflict even worse.  Judges do not like to find a person in contempt unless the violation is serious.

What can the court do if it finds contempt?

The goal is to have the party follow the court order in the future.  The judge can order different things to achieve this.[8]  Here are some types of things the judge can order:

  • that the person in contempt must get counseling.

  • that the person in contempt must complete a parenting class.        

  • that the person in contempt must look for work a certain number of hours a week. 

The judge can order future hearings to check that the person in contempt is now obeying the order.   

For violation of a parenting plan, the judge can also:

  • order that one parent get more make-up residential time with the children.

  • award attorney's fees.

  • order a civil penalty.

  • order greater penalties for the second contempt violation in three years.[9]

If the judge believes the person in contempt probably will not be able to obey the order in the future, the judge may:

  • tell the person to file a motion to change the court order so they do not keep violating it.

  • enter a judgment for money due under the order (example:  back child support).

  • order jail time, only as a last resort and only to require someone to obey the court order, not to punish them.[10]

*A contempt order must specify what the person can do to purge (fix) the contempt.[11]

What must I show to prove that contempt has occurred?

Before it can find a person in contempt, the court must find all of these are true:

  • There is a valid court order in effect [12]

  • The other person knows about the court order

  • The facts show a plain violation of the order[13]

  • You have given the person notice of the contempt hearing and a chance to be heard

  • Contempt is an appropriate remedy for the violation.

If the contempt is for a parenting plan violation, one of these must be true:

  • there must be evidence that the violation was in bad faith

  • there must be evidence that the person violating the plan engaged in intentional misconduct

  • the court must find that prior sanctions have not led to the person obeying the order[14]

The court assumes someone refuses to follow something in the parenting plan in bad faith.  The law presumes you are able to obey the parenting plan.  If you do not, you must show:

  • you are unable to obey it OR

  • you have a reasonable excuse[15]

How do I decide if contempt is appropriate in my case?

Think about these questions before filling out the contempt forms:

  • Is the order still in effect?  Some orders end at a specific date or when a final order is entered.  You cannot use Contempt to enforce an order that has ended. (Exception: you can enforce a child support order through contempt even after the child becomes an adult.)

  • Does the other person know of the court order?  Have you had the person served with a copy of it? If not, was that person there when the judge signed the order?[16]  If not, notice may not be enough.  Without proper notice of an order, the court will not hear a contempt motion for violating it. (For restraining orders, having a law enforcement officer read a certified copy of the order to a person is considered notice of the order to that person.)[17]

  • Have you met all the responsibilities you might have yourself under the order to trigger the other person's duty in the same area?  Example:  You get visitation only after you have completed a drug treatment program. Now you have asked for visitation and been refused. Have you completed the program? Have you proven to the other party you completed it?

  • Does the order clearly describe the other person's responsibilities?  If not, contempt is not realistic until the court order is clarified or changed and you can prove your case.

  • Do you expect the other person to deny their violation?  If so, do you have enough proof of the violation? If you cannot show by your own or witnesses' first-hand knowledge that the other party violated the order, the court will not be able to find the other person in contempt. 

  • Does the other person have a reasonable excuse for the violation?  In most contempt cases concerning parenting plans or child support, once you have shown the order is valid and the other person knows of the order but has violated it, the other person must either show a reasonable excuse (for parenting plan violations) or inability to obey despite reasonable efforts (child support and parenting plan cases). If the other party can show one of these, a contempt motion may be a waste of time. 

  • Is contempt the best option? The next section explains other possible options. Get legal advice about your situation. 

What alternatives do I have to contempt?

They include:

Demand letter:  Send the other party a letter by regular and certified mail explaining the violations.  Ask him/her to correct them.  (Keep a copy of the letter for your own records.)  

A letter can sometimes lead to an agreed solution.  It can also show you are being reasonable, that the other party knows of the court's order, and that you are unhappy with his/her behavior. Your letter should be specific, polite, and business-like.  

Motion to Clarify:  You can use this when a court order is vague or unclear.  Example: when the order just says "reasonable visitation" and the parties disagree on what is reasonable.

Motion/Petition to Modify (or Change a Court Order): You can use this to ask the judge to change an order instead of asking the court to enforce an order.  (If this is your situation, our website has a list of packets you might use.)

Enforcement and collection: For many kinds of money, support, and property orders, collection actions such as wage assignment, garnishment, or foreclosure work better than contempt.  In the case of child support (and spousal maintenance if there is also a child support order), you can get free collection services free from the Child Support Division of DSHS.

Dispute resolution:  Many parenting plans have an alternative procedure to court to try first if you disagree about the parenting plan.  It may be required in your case.  Read your court order.

Criminal prosecution: Only for very serious cases.

*Contempt costs a lot, is hard to prove, and the judge may not want to do anything.

What are the risks of filing for contempt?

It may be too risky in your case.  Think about these possible problems before you decide to file.

  • Defending a modification motion.  Sometimes filing a Motion for Contempt will cause the other party to file a motion to change the court order.  Example:  the other party may try to reduce child support or ask for different residential time. If you are not ready to spend time defending against this type of motion, do not file for contempt.

  • Defending a contempt motion. Have you obeyed the Court's orders yourself?  If not, the other party may respond to your motion for contempt by filing his/her own contempt motion against you.  Or s/he may argue that your violation of the order prevents him/her from obeying it.

  • "Crying wolf."  Is the violation an important one? Judges do not like to hold someone in contempt for violation of a small item, even if it happens more than once.

  • Emotional cost. Going to court often creates hard feelings. It may upset your children.  It can increase the risk of destructive conduct by the other party. Are these dangers in your case? Do you want to go forward anyway?

  • Risk of fees.  In some cases the court can or must charge the losing party with fees.  Example:  in contempt for parenting plan violations, if the judge finds you had no reasonable basis for the motion, s/he will order you to pay the other party's attorney's fees.[18]

I have been served with a contempt motion.  Do I have defenses?

Here are some possible defenses:

  • The Court order is invalid because the court lacked jurisdiction. This means the court had no authority to act (subject matter jurisdiction), or you were not served with legal notice in the original case (personal jurisdiction). 

  • You did not violate the order. Example:  The motion asks for back due support. If you have proof of payment, you have a defense.

  • You are unable to obey the order through no fault of your own.[19]

    • If the charge is not paying child support, and you claim you are unable to pay, you must show you tried hard to get work, save money, or otherwise follow the order. [20]

    • If the charge is a parenting plan violation, the judge will presume you have the ability to follow the parenting plan. You must prove lack of ability or reasonable excuse.[21]

  • No knowledge of the order.[22]  (Use this defense only if you can prove you never properly got notice of the hearing that led to the order.)

  • Improper service of the Order to go to Court for Contempt Hearing (Order to Show Cause) scheduling, or not enough time to respond.  (This is only a temporary defense.  The other side can get out of contempt before you even get back to court by giving you the proper notice and time to respond.)

  • The order is unclear, or seems to have more than one possible meaning. (You may then at least have some duty to try to obey the order as you interpret it and/or to seek clarification.  You cannot just ignore the order.)

  • The court order has ended. (Examples:  a temporary family law order has expired. The court has changed a final parenting plan.)

  • A financial order is unrelated to support.[23]

  • Agreement not to enforce the order by the other person or delay in enforcing is a risky defense. It may be unwise to agree to ignore an order or to rely on the other party saying they will not enforce it. The judge has issued the order, not the other party.

 The following are probably NOT good defenses:

  • Saying someone advised you to violate the order (whether the advice came from a lawyer or just a friend or relative).

  • You disagree with the order.

  • You believe the judge made a mistake by signing the order[24]

  • The other parent violated his/her own responsibilities under the order.  (Example:  The other parent fails to allow you visitation. It does not excuse you from paying child support.)[25]

What if the other party is in the military?

S/he may be able to have court hearings stayed (postponed) while s/he is on active duty.  If the case is about child support or maintenance, the Division of Child Support may be able to help collect support/maintenance directly from the military if s/he is not paying.

What is the procedure for contempt?

Usually you must file a motion.  A Motion is not a new case.  It takes place in an existing case.  It is an effort to enforce an existing order.

You file your contempt motion in the same county and court that entered the original order.  (If you have an order from another county or state, you must take extra steps to start a new court case in the new county.)

A contempt proceeding includes[26]

  • Filing a motion

  • Getting a hearing date by having the court sign an Order to Go to Court for Contempt Hearing (Order to Show Cause)[27]  

  • Having the contempt papers (and usually the original court order) properly delivered to every other party

  • The contempt hearing

  • Entering an order showing the judge's decision at the hearing

The Division of Child Support (DCS) uses extra steps if it files for contempt to enforce a child support order an agency had issued.  Those contempt cases may begin with the filing and service of a Summons and Petition, together with a Motion and the other documents.

What happens at the contempt hearing?

Usually the judge hears many different cases on the same day. There will be a court calendar listing all the cases the court will hear.

In each case, the judge will listen to both parties' arguments. Some courts require live testimony at the hearing.  You may have to get advance permission to give live testimony.  Other courts never allow live testimony.   Call the court clerk to find out the local procedure.

The person who has filed for contempt must show all these are true:

  • there is a court order in place        

  • the other person knows of the order

  • the other person has violated the court order

  • the other person has been given reasonable notice of the contempt hearing and reason/s For it 

The person charged with contempt can present defenses.  Usually, if s/he claims s/he cannot obey the court order, s/he must have evidence to prove it. If s/he has filed his/her own motions, the judge may hear them at the same time, if you have gotten proper notice.
If Petitioner asks for jail time as a remedy, the person charged with contempt is entitled to a court-appointed lawyer if s/he cannot afford one. [28]

If the other party does not come to the hearing or to review hearings, the judge may issue a bench warrant for his/her arrest.

After hearing from both parties, the judge will decide on the Motion for Contempt and any other motions before it.  The party who wins at the hearing presents a written order for the judge to sign. The judge usually signs that order the same day.  Sometimes the judge schedules a new hearing date for you to present the order for signature.  The order must accurately summarize the judge's decision.

What happens if the court enters a contempt order?

To remedy contempt, the judge can order one or more of the following:

  • An order designed to make the person obey the order in the future

  • A forfeiture of up to $2,000 for each day the contempt continues[29]

  • Payment for losses to the injured party [30]

  • Costs to the injured party in bringing the contempt motion[31]

  • If the parent has been found in contempt for violation of a parenting plan at least twice in the last three years, that is grounds to change the residential provisions of the parenting plan (see RCW 26.09.260(2)(d));

  • Imprisonment, as a last resort and only so long as it serves the purpose of getting the person to obey the order.[32]

Footnotes:

1. This publication uses footnotes to tell you the sources of law used. 

2. In re Application for Writ of Habeas Corpus of Parent, 112 Wash. 620 (1920).

4. Rideout v. Rideout, 150 Wn. 2d 337 (2003)

5. State ex  rel. Sargent v. Superior Court for King County, 71 Wash. 495 (1913) .

6. In re Marriage of Young, 26 Wn. App. 843, 615 P. 2d 508 (1980).  But it can be used to order that property awarded actually be delivered.  State ex rel. Sargent v. Superior Court, 71 Wash. 495 (1913)

7. Exception:  unpaid child support can, in some circumstances, be collected through contempt even after the child becomes an adult, RCW 26.18.050(5).

8. In re James, 79 Wn. App. 436 (1995).

10. Jail time as punishment is a different kind of contempt.  We do not cover it here.

11. In re Detention of Rebecca K 101Wn. App. 309 (2000), King v. DSHS, 110 Wash 2nd. 793 (1988)

12. You can enforce a child support order by contempt even after the child is an adult, unless back due support has been paid in full. RCW 26.18.050(5).

13. In re Marriage of Humphreys, 79 Wn. App. 596 (1995).

15.  Rideout v. Rideout, 150 Wn. 2d.337 (2003). 

16. In re Koome, 82 Wn. 2d 816, 821 (1973)

19. State v. Olsen, 54 Wn. 2d 272, 340 P. 2d 171 (1959),  State v. Mecca Twin Theater, 82 Wn. 2d 87, 507 P. 2d 1165 (1973)

21.Rideout v. Rideout, 150 Wn. 2d 337 (2003)

22. State ex rel. Ewing v. Morris, 120 Wash. 146 (1922), In re Marriage of Maxfield, 47 Wn App. 69 (1987)

23. In re Marriage of Young 26 Wn. App. 843, 615 P. 2d 508 (1980).

24. Dike v. Dike, 75 Wn. 2d 1, 448 P. 2d 490 (1968).

25. Wheeler v. Wheeler, 37 Wn. 2d 159, 222 P. 2d 400 (1950).

26. This publication assumes the original order and the contempt motion are filed in the same county. We do not discuss what you have to do if this is not true.

27. Our packet Filing for Contempt has more information about the procedure and for forms and instructions.

28. Tetro v. Tetro

32. King v. Department if Social and Health Services, 110 Wn. 2d 793, 756 P .2d 1303 (1988).

3107EN

This publication provides general information concerning your rights and responsibilities.  It is not intended as a substitute for specific legal advice. 
This information is current as of June 2016.

© 2016 Northwest Justice Project — 1-888-201-1014.

(Permission for copying and distribution granted to the Alliance for Equal Justice and to individuals for non-commercial purposes only.)
Last Review and Update: Jun 24, 2016
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