Family Access Motion or Motion for Contempt?

On behalf of The Marks Law Firm, L.L.C. posted in Contempt and Family Access and Child Custody on Friday August 2, 2013

In our last post we detailed the nature of the Family Access Motion. In this post, we discuss the Motion for Contempt and the pros and cons of each type of motion.

In general, a motion for contempt allows any party to come into the family court and ask the judge to force the other party into complying with the terms of the judgment. With regard to child custody, filing a motion for contempt for failing to allow scheduled physical custody would seek several remedies, including compensatory time, a fine or the posting of a bond, and attorney’s fees.

You probably noticed that the remedies of a motion for contempt seem very similar to those of a family access motion, and you would be correct, though a motion for contempt offers three critical differences. First, only a motion for contempt allows the court to order the party in violation to pay for the attorney’s fees and costs associated with bringing that party into compliance. Second, a motion for contempt is a judicial finding of bad behavior that could be relied upon in the future if the other party seeks to modify custody. Finally, a contempt proceeding allows a judge to use additional powers, including putting a contemnor in jail, that the family access motion does not allow.

When should a person use each of the methods to remedy the failure to follow the physical custody schedule? Generally, if the number of missed periods of physical custody is small and somewhat isolated, the family access motion would be more advantageous because it provides a quick option (no more than 60 days to receive compensatory time) at a much lower cost. If the pattern of missed custodial time runs longer and seems part of a willful plan to keep the children away from one parent, the motion for contempt works as a more effective “hammer” on bad behavior, gives the court more options, and allows the aggrieved party to also consider filing a motion to modify.

Before making a decision as to whether to file a family access motion or a motion for contempt, we strongly suggest you consult with an attorney first to discuss your different options in the specific context of your case.

If you have questions about a denial of visitation or custody and a family access motion, contact us – we can help.