Child custody contempt may not bring change

A new ruling by the Superior Court of Pennsylvania warns parents that simply bringing a "contempt" petition against the other parent does not entitle them, or the court, to seek a change in the terms and conditions of the existing child custody order.

Instead, the new petition must request not only that the offending parent be held in contempt, but also that the custody arrangement be changed or "modified" to avoid future problems.

 Understandably, many litigants assume that if a judge finds the other parent in contempt for non-compliance with a court-ordered custody arrangement, that the judge will levy "sanctions" or punish the parent for being in contempt.

But the new court ruling makes clear that such sanctions may not include a change in child custody.

Last month the Superior Court ruled in P.H.D. v. R.R.D., 2012 PA Super 246, in which Mother asked that Father be held in contempt for attending a child's school band concert. Father was restricted to "supervised visits" with the child. The existing order banned Father from any other "contact" with the child. Nevertheless the Father attended the school performance and sat in the front row, waving to his child. In his defense, Father explained to the judge he thought "no contact" meant "no talking."

Although the judge dismissed the contempt petition, and ruled that Father was not in contempt, the judge "modified" the order to impose more severe and restrictive conditions on Father. For example, the judge changed the existing order to now include a total ban on Father ever appearing at any place where the child could reasonably expected to be present. The judge said he made these changes to "clarify" the existing order's no-contact provision.

The Superior Court said the judge was wrong to impose these changes in the custody order without Mother having first filed a Petition To Modify the current arrangement. The judge violated Father's due process rights of being aware of, and preparing for, the likelihood that he could lose custody privileges at the contempt hearing.

The appeals court stated that Father's due process rights were violated regardless of whether Father had been held in contempt. Thus, contempt sanctions may not include a change in custodial rights, without a request for modification being presented to the court as well.

It's an easy task -- and common sense -- to include in a petition for contempt a formal request for modification as well, along with a proposed remedy or change in custody that reflects an appropriate punishment for the poor behavior, or change which would ensure the offending parent would not have an opportunity to repeat the contempt.  Simply asking for "appropriate sanctions" in a contempt petition falls short.