When a person willfully disobeys a prior court order, including a child custody order, a court can hold the offender in contempt.(1) The finding of contempt can be either “civil” or “criminal,” depending on the action taken by the court to deal with the contempt. Criminal contempt “imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.”(2) This article focuses on the standards governing criminal contempt of child custody orders.
A trial court generally has broad discretion to determine if a party is in contempt of its order, including a child custody order.(3) Nonetheless, in a criminal contempt proceeding, the defendant must be presumed innocent and proven guilty beyond a reasonable doubt, and he cannot be compelled to testify against himself.(4)
If a judge finds that a parent’s conduct hindered, frustrated, or obstructed the other parent’s visitation or custodial rights, the court can convict the obstructing parent of criminal contempt.(5) To merit a conviction for contempt, however, the defendant parent’s actions must actually have hindered or obstructed the plaintiff-parent’s visitation. An intent to hinder or frustrate the progress of the plaintiff’s visitation, standing alone, should not justify a criminal contempt conviction.(6)
A court can punish criminal contempt “by fines not exceeding $1,000.00, by imprisonment not exceeding 20 days, or both.”(7)
Because a trial court has the authority to modify visitation rights during a contempt proceeding, it also should be able to address criminal contempt of a child custody order with protective provisions amounting to modification of the prior order.(8) A court’s authority to “make prohibitive or mandatory orders … upon such terms and conditions as the court may deem just” should further support the granting of such protective provisions.(9) For instance, a trial court has the authority to specify the mode of transportation of a child for visitation and regulate the contact between the parents during visitation exchanges.(10)
As an additional remedy for criminal contempt of a child custody order, a trial court may have the authority to award attorney’s fees and litigation expenses to the plaintiff if the plaintiff has specially pleaded for such relief and “the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.”(11) The court need only make express findings of fact and conclusions of law to justify the ruling.(12)
Alternatively, a court conceivably could award attorney fees and expenses for criminal contempt of a child custody order under a statute allowing discretionary awards of reasonable attorneys’ fees and various expenses of litigation in any child custody case.(13) Because a contempt claim does not create a new civil action, and instead constitutes a motion ancillary to the action in which the violated order issued, contempt of a final order modifying child custody/visitation seemingly could be construed as a child custody case in which the discretionary authority to award attorney fees and expenses applies.(14)
(1) Greene v. Greene, 306 Ga.App. 296, 300, 701 S.E.2d 911 (2010); Saravia v. Mendoza, 303 Ga.App. 758, 763(2), 695 S.E.2d 47 (2010);
(2) Ensley v. Ensley, 239 Ga. 860, 861-864, 238 S.E.2d 920 (1977); Carlson v. Carlson, 324 Ga. App. 214, 216(1), 748 S.E.2d 304 (2013); and Thedieck v. Thedieck, 220 Ga.App. 764, 765-766(1), 470 S.E.2d 265 (1996).
(3) Hill v. Davis, 337 Ga.App. 683, 684(2), 788 S.E.2d 570 (2016), citing Baker v. Schrimsher, 291 Ga. 489, 491, 731 S.E.2d 646 (2012).
(4) Carlson, supra, 324 Ga. App. at 216(1).
(5) See Stanford v. Pogue, 340 Ga.App. 86, 88-89(2), 796 S.E.2d 313 (2017); and Carlson, supra, 324 Ga. App. 214.
(6) See Bell v. Aprea, 228 Ga.App. 569, 571, 492 S.E.2d 24 (1997).
(7) O.C.G.A. § 15-6-8(5). See also Stanford, supra, 340 Ga.App. at 88(2).
(8) See Carlson v. Carlson, 284 Ga. 143, 144, 663 S.E.2d 673 (2008); Stanford, supra, 340 Ga.App. at 86-87(1).
(9) O.C.G.A. § 9-11-65(e). See also Spirnak v. Meadows, 355 Ga.App. 857, 844 S.E.2d 482, 488(3) (2020).
(10) See Spirnak, supra, 844 S.E.2d at 488(3).
(11) O.C.G.A. § 13-6-11.
(12) See Parland v. Millennium Const. Services, LLC, 276 Ga. App. 590, 593(2), 623 S.E.2d 670 (2005).
(13) O.C.G.A. § 19-9-3(g).
(14) See Cook v. Smith, 288 Ga. 409, 412(2), 705 S.E.2d 847 (2010); Phillips v. Brown, 263 Ga. 50, 51(2), 426 S.E.2d 866 (1993); Opatut v. Guest Pond Club, Inc., 254 Ga. 258, 258(1), 327 S.E.2d 487 (1985); Cowart v. Georgia Power Co., A21A1805, *8-9(1) (Ga. Ct. App., January 14, 2022); and Carden v. Carden, 266 Ga.App. 149, 150(1), 596 S.E.2d 686 (2004).