For some families, one of the greatest challenges is achieving a successful and workable arrangement regarding child custody and visitation. For some parents, an unfavorable ruling in their visitation case may create a temptation to ignore parts of the court’s orders. While both parents should always strive to work cooperatively for the good of their child and obey orders issued by the courts, it is nevertheless important to know what a trial judge can and cannot do if one parent violates an order. In a case that originated in Montgomery County, a mother found herself in contempt for violating a visitation order. A recent ruling by the Court of Special Appeals threw out the punishment against the mother because the contempt order did not give the mother an avenue through she could immediately “purge” the contempt charge and avoid the sanction of lost visitation time with the child.
The case involved a child born to Denise Kowalczyk and Mark Bresler in May 2002. Originally, a California court awarded primary physical custody of the child to the mother. In 2014, however, a Maryland court issued an order awarding sole legal custody to the father. In the next year, the trial court set out the temporary terms for the mother’s visitation. She received only two hours of supervised visitation every other weekend, and two video calls each week lasting up to 15 minutes each.
Only a few weeks after the entry of the visitation order, the parents were back in court. This time, the father asked the court to find the mother in contempt for violating the visitation order. The mother, according to the father, had engaged in unapproved contact with the child by sending text messages through a Sony PlayStation 4 video game console. The trial judge ruled that the mother had violated the terms of the visitation order and found her in contempt. Her penalty for her contempt was a loss of all visitation “or access of any kind” with the child.
The mother appealed this order, and she won. The problem was not that the lower court found the mother in contempt for using the PlayStation to engage in secret communication with the child, contrary to the court’s orders. That finding remained unchanged, but the reason that the mother prevailed came down to the way the trial court handed down punishment for the contempt. Since the court based its contempt ruling on the mother’s failure to comply with previous orders, she was found in civil contempt. Maryland requires that courts give people found in civil contempt “a purging provision with which the contemnor has the present ability to comply.” This means that the judge must give the person found in contempt a means by which she can immediately “purge herself of contempt” and avoid the penalty, or sanction, for being in contempt.
In this case, the sanction was the loss of visitation, and the purge provision required the mother to “abide by the modified provisions” of the visitation order. If she established that she, going forward, was abiding by the visitation order, she could purge herself of contempt at some future date and regain her visitation rights. However, there was nothing in the order that the mother could do, at the exact moment of the hearing, to “purge” the contempt charge and avoid the sanction of the loss of visitation. Without such an option available in the present tense, the contempt punishment was invalid.
Whether or not your visitation case involves assertions of misconduct and violations of court orders by a parent, it is important to have experienced counsel to help you defend your rights. For advice and representation on which you can confidently rely, talk to experienced Maryland child custody attorney Anthony A. Fatemi. To put the power of this office’s years of knowledge and experience on your side, contact us at 301-519-2801 or via our online form.
More blog posts:
Hearsay Rule Prevents Maryland Mom from Testifying About Children’s Statements, Maryland Divorce Lawyer Blog, July 14, 2016
Maryland Court Affirms Decision Denying Parent Visitation in Child Custody Dispute, Maryland Divorce Lawyer Blog, Dec. 30, 2014