As always, before reading this post please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
I've discussed previously in this blog the difference between a court judgment and a court order, including the difference between a money judgment and an order to pay. The biggest difference between the two, as I've said before, is that judgments require some other action to enforce, while orders present requirements for the party so ordered to follow, and the violation of an order carries the risk of jail time due to contempt of court, while judgments carry no such risk. Finally, I've at least alluded to the fact that it's not necessarily a simple process for someone to be held in contempt when they violate an order.
In today's blog post, I will discuss what to do when someone has violated a court order (as opposed to a judgment). I will be discussing it in the family law context (so, divorce orders, support orders, custody/visitation orders, etc.) since that is what I practice, but a good deal of the principles here can apply to other forms of court orders.
Also, please note that in some cases, the case may get referred to the Commonwealth's Attorney for pursuit of a criminal contempt charge. In that case, the case proceeds like a normal prosecution, and your attorney is no longer involved. Because the vast majority of contempt charges in civil cases, including divorce, proceed as "civil contempt" charges - and because when I am involved in a contempt proceeding it is always in a "civil contempt" context - I will only be discussing civil contempt in this blog post.
With One Exception, Don't Bother Calling the Police
The natural instinct for many people when faced with a violation of a court order is to call the police. After all, violating a court order, committing contempt of court, is a crime. The police, however, do not consider enforcing court orders to be part of their job - nor should they. The presumption of innocence applies just as much to contempt as to any other crime, and the fact that you have another avenue (as explained later) to enforce the order means the police really have no place stepping in themselves.
There is an exception to this, however, and that is in the custody context. If the non-custodial parent with visitation is refusing to return the child, or has absconded with the child, you are no longer just dealing with contempt, but also kidnapping. The police frequently will intervene in such a case (after all, there is the possibility that a life could be in danger), especially if it is not a matter of the parent delaying returning the child but rather the parent actually refusing to return the child. Now, there is also an exception to that exception - if the parent refusing to return the child is doing so because that parent fears the child is actually in danger from the custodial parent, the police generally will not intervene so long as the non-custodial parent goes straight to the courthouse (or, if the courthouse is closed, does so as soon as it opens) to file an emergency to motion to get legal custody.
These are, of course, general rules, and different police departments behave differently, but generally, it is not worth calling the police over a violation of a court order (especially if that violation only involves money). I would note, however, that violations of court orders that also involve a danger to your life or safety (or the life or safety of anyone else), and violations of court orders that also involve the violation of a protective order, are violations that also involve other crimes, and as a result police intervention would be warranted in those cases as well.
Get an Attorney
Now, I always advise people to get an attorney, but in this context it is even more important. The reason for this is that, frankly, the rules surrounding contempt proceedings are complicated, and even worse, they generally vary from county to county, so you want an attorney who knows the local rules. If you are dealing with the violation of a Juvenile & Domestic Relations District Court order, this is slightly less important because the court's intake office will probably be willing to guide you through the process, but this still has pitfalls. If you are dealing with a Circuit Court order, you definitely want an attorney.
Figure Out if the Violation is Worth Pursuing
The next step is to discuss with your attorney if this violation is actually worth pursuing. Judges are very busy, and in general don't want to see your nit-picky case in front of them. If you are taking action over something minor, you are likely to get nothing from the judge but that judge's anger. In support cases, for example, a few dollars should probably just be let go. In a visitation case, the child being brought to you thirty minutes late probably also isn't a big deal.
That being said, there's no rule that says a contempt proceeding has to be limited to one incident - it can be cumulative. If, for example, the support payor is paying $25 less every month then after a year you've got a $300 arrearage - for some people that's a lot of money and may be worth pursuing, even though the individual $25 shortages weren't. In a visitation situation, one half hour delay may not be worth pursuing, but 20 might be. This is really something to discuss with your attorney and assess whether or not you should really move forward.
File a Petition for Rule to Show Cause
So, let's say you and your attorney decide you should go forward. The next step is to file a petition for a rule to show cause. This is a petition that you sign under oath (so lying could subject you to a perjury charge) stating what the other party has done to violate the order. You then submit it to the court, asking the court to issue a "Rule to Show Cause." A Rule to Show Cause is a court order requiring the other party to appear in court at a certain date and time and explain to the judge ("show cause") why he or she should not be held in contempt of court. That order must then be served on the other party. Note that you really need to have the person personally served (instead of having the rule posted to their door), since if they are personally served and don't appear, a warrant for their arrest can be issued.
Appear at the Hearing
You should also be at the hearing on the date listed in the rule to show cause. This is because you will likely also be testifying. The judge at the hearing will hear your testimony as to what happened to violate the order, the other side's testimony as to why he or she did not violate the order (or why the violation was justified), and hear any other testimony either side thinks is necessary. At the end of the hearing, the judge will decide whether or not the judge is convinced that contempt has occurred, and will act accordingly.
So - what can the judge do? If you are dealing with a non-support violation, the judge can jail the other party for up to ten days, fine them, make them pay your attorneys' fees, and even change the underlying court order. The judge's powers are the same for support order violations, except that the jail time can be up to 12 months, and if you are in the Juvenile Court and the other party owes at least three months' worth of support, the judge is required (as opposed to just allowed) to make them pay your attorneys' fees.
As a general rule, however, a judge will rarely impose jail time for a first offense unless there is a very large support arrearage. It is not uncommon, however, for a judge to impost a "suspended sentence," meaning the person is sentenced to jail time, but he or she doesn't actually have to serve that time unless they commit another offense. It's worth noting this can make the next offense more severe, since the judge could then sentence you (in a non-support case) to ten days in jail for that offense and ten days in jail for the previous offense. Of course, this is part of the point of issuing a suspended sentence - having a minimum amount of time that person knows he or she will serve in jail if they commit another violation.
What's the Point?
So, you may look at all of this and say "so, what's the point?" The point, of course, is the same as with much of criminal law. The ability to have someone held in civil contempt makes them more likely to comply with orders to begin with, and the enforcement of a violation makes them less likely to commit further violations. Additionally, sometimes contempt proceedings also get you judgments, which you can use to garnish paychecks and bank accounts. All in all, unless you are dealing with minor violations, civil contempt charges are usually worth pursuing.
Conclusion
If the other party has violated a court order and you wish to have them held in contempt - or you, yourself, have been accused of violating a court order - it's critical that you have the assistance of an attorney going forward. If you would like to consider our services, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
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