Ex Not Following the Parenting Plan

by Samuel K. Darling, Bellevue Divorce Lawyer

This article explains what to do if your ex is not following the parenting plan in your Washington divorce or family law matter. The appropriate remedy is almost always a motion for contempt. In fact, contempt is the most common remedy for violation of almost any family law order, such as a child support order, restraining order, or order to pay spousal maintenance.

This article has three sections. The first is on calling the police and how they can help (or not). The second is on contempt, including how to file your own motion. The third is on “clarification”, a request that usually accompanies a motion for contempt.

Table of Contents
1) Calling the Police
2) Contempt
3) Clarification in the Alternative

I. Calling the Police.

There are criminal law corollaries for wrongfully withholding the children, called custodial interference of the first degree and second degree. You can try calling the police and asking for help if your situation qualifies. Unfortunately the police and prosecutors rarely apply these criminal laws, even if you ask. They have more pressing matters and assume your family law case is a better forum.

II. Contempt.

As mentioned above, a motion for contempt is the most common remedy for almost any violation of a family law order. As such, the remainder of this article addresses contempt in that general context.

1. Elements of Contempt. The following factors must be present for the court to find contempt:

An order. There must be an order. An oral order can be sufficient.
Notice of Order. The responding party must be on notice of the order’s relevant terms. Washington courts tend to interpret this requirement loosely. Virtually any notice can be sufficient it seems. Orders need not be served in accordance with the law for a party to have notice of them. Oral notice of a written order is sufficient. If the opposing party acts in ways implying he or she has knowledge of the order, it can be enough. In dicta (meaning nonbinding conjecture), the Washington Supreme Court went so far as to say a party who was served with notice of a proceeding had constructive knowledge (meaning the person is treated as having knowledge) of an order entered by default (meaning the party did not participate in the case), even if the person was not served with the resulting order and had no actual knowledge of it.
- Notice of restraining orders presents an exception. A party has notice of a restraining order only if: a) the restrained person or his or her attorney signed it, b) the restraining order states the restrained person or his or her attorney were present in court, c) someone properly served the restraining order on the restrained party, or d) a police officer gave the party formal oral or written notice.
Clear Violation. The violation of the order must be clear. To the extent there is ambiguity, the court should construe the order in favor of the accused party.
No Valid Excuse. The responding party must lack a valid excuse for noncompliance. The accused party bears the burden of proving his or her alleged inability to comply with the order. The court begins with the assumption a party can comply with the order and tends to scrutinize these excuses closely, especially when someone claims the inability to pay support or follow the parenting plan. Inability to comply is not a defense if it was self-created or arose because of the contemnor’s failure to take proper action. For example, a parent who claims the children refuse to visit the other parent will be held in contempt of the parenting plan unless he or she does virtually everything in his or her power to force the children to visit the other parent.
Notice of Contempt Hearing. The responding party must receive proper notice of the contempt hearing. See below for process of filing a motion for contempt.
Contempt Can Address. The violation of the order must be one contempt can address. A party normally cannot use contempt as a remedy for failure to pay money. A potential outcome of contempt proceedings is imprisonment, and debtor’s prison is unconstitutional. Failure to pay amounts that “relate” to spousal maintenance or child support are an exception to this rule. Washington courts have a history of stretching to find various kinds of financial relief “relate” to spousal or child support.

2. Relief the Moving Party Can Win. The court will levy “sanctions” if the moving party is successful in his or her motion for contempt. Generally in family law, the sanctions should be severe enough to coerce future compliance but not so harsh as to equate to “punishment”. Acceptable sanctions include:

Jail. Temporary imprisonment until the contemnor meets a purge requirement or serves a set time limit. Imprisonment is only appropriate if other measures are unlikely to work, and it cannot last forever. If the aggrieved party seeks jailtime, the accused party has a right to apply for a government appointed attorney.
Money. Forfeiture of up to $2,000 per day until the contemnor meets the purge requirement.
More Money. Reimbursement of any amounts the contemptuous action cost the aggrieved party, including attorney fees in bringing the contempt motion.
Remedies for Loss of Residential Time. Makeup residential time with the child(ren) for all residential time the aggrieved party lost because of the contemptuous actions. This, along with an award of attorney fees and a civil penalty of at least $100, are MANDATORY if the contemnor violated the residential portions of the parenting plan in bad faith. Bad faith typically means refusal to comply with the parenting plan. Arguably the law requires the court to find bad faith in order to find contempt of a parenting plan’s residential provisions.
Review Hearings. The court might order a series of review hearings to monitor future compliance. Treat the review hearing as if it were a motion filed by the other party. Respond to the motion with any additional information you believe the court should have. The other party might do the same, in which case you can file a reply declaration. The response and reply declarations should be filed and served in accordance with the county’s local rules and norms. You can read the local rules by clicking the link in this sentence, but you would probably benefit more from speaking with one of the local family law facilitators. They can only provide basic assistance but also charge only $10 per session.
Modification of the Parenting Plan. Two findings of contempt of residential portions of the parenting plan can be basis for the aggrieved parent to petition for major modification of the parenting plan.
Miscellaneous. Other miscellaneous relief the court deems appropriate. Entering an order of default – barring the contemnor from participating further in the case – is probably too harsh a remedy.

3. How to File a Motion for Contempt. A motion for contempt is by “show cause”, a special motion requiring additional procedure. Find the self-explanatory forms on the Washington Court Form’s Website under Family Law > Divorce > Contempt. Our firm has a separate article on filing show cause motions.

Notably, it is unclear whether you must complete your parenting plan’s alternative dispute resolution process before filing a motion for contempt. Washington’s most respected secondary source, Washington Practice, says “no”. Some judges and commissioners say “yes”.

III. Clarification in the Alternative.

A motion for “clarification in the alternative” should almost always accompany a motion for contempt. The main defense against contempt is that the order is ambiguous when construed in the light most favorable to the alleged contemnor. A motion for clarification allows the jurist to resolve this ambiguity with a written order stating exactly what the opposing party must do in the future. Hopefully this added clarity will cause the opposing party to follow the spirit of the order from that point forward. If not, your next motion for contempt will have a much greater likelihood of success because of the order’s improved wording.

Wherever, your motion or party declaration mentions your requested relief, make sure it reads something akin to the following:

“Find [Party] in contempt of the [name of the order] for [state the violation of the order]. In the alternative, clarify the order by [state what the court should say to clarify the order].”

The state’s template for contempt motions changes consistently, which makes it difficult explain this more specifically. Sometimes you need to edit the state’s template. Click here for an example motion for contempt and clarification on the state’s template for 2020. The language about clarification has yellow highlighting.

That’s it! We hope this was helpful. Our firm believes in making quality legal information available for free on the internet. For more, click the resources tab in the upper right corner of any page on this website.

Or call us at 866-631-0028 to speak with a Genesis divorce lawyer in Bellevue or Everett, Washington. From all of us at Genesis, we wish you the best with your family law matter!

Ex Not Following the Parenting Plan | Contempt

I. Calling the Police.

II. Contempt.

III. Clarification in the Alternative.

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