Written by attorney Mark Twombly Lee



In Massachusetts, non-custodial parents who choose not to exercise court ordered parenting time cannot be held in contempt for not exercising their parenting rights under a court order or agreement incorporated into a judgment. Custodial parents in Massachusetts who choose to prevent the non-custodial parents’ exercise of court ordered parenting rights can and will be held in contempt for clear disobedience of clear and unequivocal court orders,O’Connell v. Greenwood,59 Mass App. Ct. 147.

Oftentimes parents will separate or divorce with a decent co-parenting work relationship and will leave the language of their parenting agreement/ separation agreement vague on the issue of non-custodial parenting times with language like, “parenting time upon the reasonable agreement of the parties not be unreasonably withheld," based on the assumption that a good working relationship between them in the present will survive new relationships for one or both of them in the future.

How many divorced couples have you known who go years without custody problems until one of them finds a boyfriend or a girlfriend?

When the refusal of the custodial parent to make the children available for parenting times with the non-custodial parent cause violations of a child custody order or a visitation agreement to occur, the first thing a family law practioner will want to review is the court order creating the parenting plan. If there is no order, a trip back to court will be necessary to obtain one.

In the case ofO’Connell v. Greenwood,59 Mass App. Ct. 147, the non-custodial parent came to court on two separate complaints for contempt on avarietyof grievances he had with the custodial parent which included:

· Violations of adetailed schedule of weekly and holiday visits;

· Failure of the custodial parent to notify the non custodial parent promptly when the child was sick and to give the other access to the child at such times by phone;

· Enrolling the child in school under another sur-name other than the father’s sur-name ( the child’s name on the birth certificate);

· Custodial parent instructing the child’s school administrators not to release the child to the father or share information;

· Custodial parent insisting that the child call the custodial parent’s new husband, “Daddy"

While all of these grievances are serious and indicate a clear and deliberate pattern of alienation of the child from his/her non-custodial parent, the appeals court in O’Connell only found the Defendant/Custodial parent guilty of contempt on the issue of violating the parenting/visitation order between the parties because it was the only clear and specific court order to the Defendant.

The case is a good read for the civil contempt standard in Massachusetts which requires a clear and unequivocal court order (fair notice of the court’s directive) and clear and unequivocal disobedience (undoubted disobeyance),Sachs v. Sachs,53 Mass App. Ct. 765.

While good parents always communicate around a child’s illness, share information and would never unilaterally change a child’s name or confuse a child as to whom his parent’s are – bad co-parent’s do - often. The trial court hearing these facts responded by finding the custodial parent who engaged in these activities guilty of contempt; the appeals court reversed these findings on the grounds that as these actions were not specifically prohibited in the judgment of custody and visitation between the parents (the custodial parent who engaged in these activities was not put on fair notice that engaging in these activities could put her in contempt of court) and that as “joint legal custodians" as set forth in their agreement, the term itself contained no clear implication against engaging in such conduct – however outrageous.

The court did find the custodial parent guilty of contempt in failing to honor the parenting agreement with the non-custodial parent regarding notice in the event of the child’s illness and observance of the parenting order. At trial, the custodial parent testified that she did not notify or the non-custodial parent that the child was sick or make the child available for a holiday visit because the child was sick. The custodial parent produced a note from the child’s doctor stating that the child should stay home and rest. The trial court, with the appeals court affirming, found that this was not sufficient excuse for disobedience of the court’s order in that the child could have quietly rested just as well in the non-custodial parent’s home during his or her court ordered parenting time.

Once parenting plans start to be flagrantly violated by the custodial parent it is best to head to court immediately for enforcement. The excuses proffered by offending custodial parents range from the non-custodial parent is not paying child support or not paying enough child support to the child is sick, the child is scared, the child doesn’t want to go, the child doesn’t like a new girlfriend/boyfriend, ect.

There are two reasons court intervention is necessary: the first is, passivity in the face of contempt empowers additional contempt; the second is, delaying enforcement of parenting plan violations sends a lousy message to the children impacted by the violations against the parent who just wants to see their children!

Children of all ages look to non-custodial parents to be “on time" and consistent in their parenting. Allowing the custodial parent to even occasionally block or interfere with that parenting time sends a message to the child that the non-custodial parent does not care - and the only way to fight back against this message to the child ( absent going to court ) is to expose the child to the conflict by telling the child why visits were missed.

Emails and even text messages provide an easy way to electronically memorialize events. I was recently approached by a non custodial parent who had accepted being barred from seeing his children for two years. My advice to him was to give written notice to the custodial parent that he intended to exercise his rights to see the children on the next date they would have ordinarily been available to him and, when he was denied, see a lawyer about filing a complaint for contempt.

The writing, email or text can be submitted at hearing as evidence of the clear and unequivocal disobedience of the parenting order.

Civil remedies on a complaint for contempt on the issue of missed visits can include make up time for missed visits andshould upon a finding of contemptinclude attorney’s fees.

If violations continue, they should be documented and additional complaints filed to further illuminate to the court a pattern of parental alienation not consistent with the child’s best interests - if it continues long enough, the court will be forced to evaluate the custodial placement of the children to ensure their continued relationship withbothparents.

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