This is the 4th installment in a series about enforcing visitation with Contempt written by Virginia Cornwell. Virginia is a A Franklin County Ohio Custody Lawyer and Ohio State Bar Association Certified Family Relations Specialist. Virginia is one of approximate 100 attorneys in Ohio to have received this honor.
The other articles in the contempt series can be seen below:
DEFENSES TO CONTEMPT THAT ARE NOT LIKELY TO WORK IN OHIO
In the course of this series, we’ve already discussed one defense to contempt that rarely works in Ohio, that a motion to modify the order was pending while a person continued to violate the order. Ohio Revised Code 2705.031 provides that a court can find a person in contempt, and punish them accordingly, even if the court later decides to change the order. (See ORC 2705.05 . Click here to see our post on penalties.
In other cases, the parties, and even the attorneys may mistakenly believe that if they take the positions that they were following the advice of their attorney, they cannot or will not be held in contempt. This is not true. It is no defense to a finding of contempt that a party acted in good faith or upon the advice of counsel. See Polk v. Polk, Rini v. Dyer, 2008-Ohio-4172, Miller v. Miller, State Ex Rel Adkins v. Sobb, Townsend v. Townsend, Pugh v. Pugh, 15 Ohio St. 3d 136 – Ohio: Supreme Court 198 etc.
Other excuses which don’t hold a lot of water in Ohio are excuses which put the wishes of the child above the order of the court, convenient ( and non-existent illnesses), convenient work and car problems that only seem to occur at the time for exchanges, etc.
Some persons who do not obey court orders mistakenly believe that they cannot be sentenced to jail time in a civil contempt action. To put it another way, they believe that the imposition of jail time makes the action a criminal contempt action, as opposed to a civil contempt action, and that he or she now has all the rights of a criminal defendant. This is not the case. In a civil contempt case, the purpose of the punishment is to coerce the contemnor to obey a judicial order for the benefit of a third party. See Polk v. Polk, Carroll v. Detty. In addition, civil contempt sanctions are conditional in nature, since the contemnor (person in contempt) is said to carry the keys to his or her prison in their pocket – because the court gives them a chance to purge their contempt (obey the court order) before they go to jail. State v. Kilbane, 61 Ohio St. 2d 201. NOTE: Purging contempt will not save you from fines, attorney fees, and a possible change of custody, just from prison.
Another legal argument that fails is the argument that jail time for contempt violates the constitutional prohibition against imprisonment for debts. WRONG. See Pugh v. Pugh, 15 Ohio St. 3d 136 – Ohio: Supreme Court 198 and Harris v. Harris (1979), 58 Ohio St. 2d 303 [12 O.O.3d 291].
One thing that it is important to remember is that if the other parent fails to transport the child, you can seek to hold them in contempt for failing to do so, but you need to go ahead and do the driving and/ or make the transportation arrangements yourself, unless it is impossible (not inconvenient) to do so on in the time frame remaining for the visitation. Try not to worry about the unfairness of having to do all the driving yourself – courts have remedies available for parents who WILL NOT (as opposed to can not) exchange their child, such as a change in custody.