Ah yes – contempt of court! Your opponent violated a court order, and you, as the aggrieved party, are going to get justice at last. After all, surely it is true that every legal right has a remedy (a Latin phrase, Ubi jus, ibi remedium, which is sometimes misquoted as “every wrong has a remedy.”)
Well, maybe that maxim is true in theory, but in practice, many “wrongs” go unaddressed from a legal perspective, either because the violation is too minor for the courts to care, it’s not worth the legal fees to vindicate those rights, or, as a parent just learned from the Colorado Court of Appeals, the other party had a good reason to violate the court order.
In Wallace,1in re: Marriage of Wallace (Colo. App. No. 21CA0716, Mar. 10, 2022) (Unpublished Decision). the parents had joint decision-making and shared parenting time. Their parenting plan further provided that a parent needed court permission or the other parent’s consent before moving with the children. (See our Relocation of Children article in the Colorado Family Law Guide for more information).
The father moved from Fairplay, Colorado to Erie, Colorado, which was more than 100 miles away, then filed a motion to relocate the children to Erie with him. The mother opposed the motion. The April 2020 relocation hearing was vacated due to the Covid-19 pandemic, with the judge directing the father to reset the hearing within 60 days. During that 60-day period, the parties temporarily stipulated to alternating weeks with the children.
However, the father apparently did not reset the hearing as directed, and according to the mother, did not return the children to her after Labor Day weekend, saying the younger child had decided to live with him, while the 17 y.o. child would return to the mother during the school year.
The mother filed a contempt of court motion, seeking both punitive and remedial contempt sanctions for the father’s alleged violation of the parenting plan. The trial court combined the father’s original relocation motion and the mother’s contempt of court motion into one hearing a few months later. At that hearing, the court:
- Granted the father’s relocation motion, and
- Found that the father was in contempt of court by violating the parenting plan with the unilateral relocation, but since the father believed it was in the child’s best interests, imposed no sanctions against the father for the contempt of court.
The mother appealed, and the court of appeals largely upheld the trial court order.
No Remedy for Contempt of Court
While it’s common for a judge who has found a party to be in contempt of court to impose sanctions, strictly speaking they are not required. Colo. R. Civ. P. 107(d) provides that a court “may” impose sanctions. This means that:
“The district court has authority — but is not required — to impose remedial or punitive sanctions on a contemptuous party. Whether to impose remedial or punitive sanctions is within the discretion of the district court.”Wallace.2in re: Marriage of Wallace, ¶ 26 (Colo. App. No. 21CA0716, Mar. 10, 2022) (Unpublished Decision) (Cleaned Up).
In this particular case, while the trial court found that the father was in contempt of court because he violated the parenting plan by unilaterally keeping the younger child in Erie with him, the court chose not to impose sanctions because that relocation was in the child’s best interests. And it explained the decision on the record, so it was not an abuse of discretion. Thus, the appellate court rejected the mother’s argument that a contempt finding without sanctions is meaningless.
An attorney cannot ethically advise a client to break the law, moreover, it would be irresponsible for a party to assume he could violate a court order with impunity. While imposing no sanctions for contempt of court is permissible per the Colorado Rules of Civil Procedure, it is something the undersigned has never actually seen happen (the law disfavors unilaterally taking the law into one’s own hands).
But when a party is fired up to file a contempt of court motion against the other party, in addition to assessing whether the violation is too trivial to waste the court’s time, family law attorneys should also consider the more nebulous issue of whether the other party may have been “right”, even while he was violating the order. Because in a contempt of court case, not every legal right has a remedy.
Interview of Child in Chambers
As indicated, this decision went beyond contempt of court, as the judge had to determine what parenting schedule would be in the children’s best interests. And to do that, in a child custody case, Colorado law allows the judge to interview the children in chambers (i.e. “off the record”). C.R.S. 14-10-126(1) provides:
“The court may interview the child in chambers to ascertain the child’s wishes as to the allocation of parental responsibilities. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made, and it shall be made part of the record in the case.”
While authorized, however, such interviews are not common (I’ve seen judges interview kids in chambers maybe 6-7 times in my entire career, and have even seen requests backfire, where a judge not only denies a motion for an in-chambers interview of the child, but criticizes the parent for even asking).
While many judges do not like that an interview in chambers could put a child into the middle of a parenting dispute, since the wishes of a child who is “sufficiently mature” is a factor the court is required to consider when determining the best interests of the child (C.R.S. 14-10-124(1.5)(a)(II), other times judges may grant such requests. It helps to know your judge!
However, ‘The decision whether to interview a child under section 14-10-126 lies within the district court’s discretion.” Wallace.3in re: Marriage of Wallace, ¶ 13 (Colo. App. No. 21CA0716, Mar. 10, 2022) (Unpublished Decision).
In this case, the judge chose to conduct an in camera interview with each child (who were then 15 and almost 18) separately (Counterintuitively, in camera actually means off the record, in chambers, not videotaped). The mother objected, claiming that the children had been in the father’s care for the prior six months tainted them, conducting the interviews via Webex limited what the court could evaluate. and suggesting a Child & Family Investigator (CFI) was more appropriate.
The trial court found that the teens were “definitely old enough to let their opinions be known”, and could assess any potential taint through observation, ultimately finding there was no evidence, and that the children told what they believed to be the truth.
“That the court had other options — such as appointing a CFI at the parties’ shared cost — doesn’t make its decision to interview the children manifestly unreasonable. After all, having discretion to resolve an issue means that the court has the power to choose between two or more courses of action.”Wallace.4in re: Marriage of Wallace, ¶ 16 (Colo. App. No. 21CA0716, Mar. 10, 2022) (Unpublished Decision) (Cleaned Up).
Court Must Order Specific Parenting Plan
And yet another issue beyond the contempt of court, and on this one the Mother prevailed.
The Court of Appeals found that the trial court abused its discretion by not ordering a specific parenting plan (as we have written about before, failing to order a specific parenting plan is asking for reversal on appeal). C.R.S. 14-10-124(7) provides that the court:
“shall formulate a parenting plan that shall address parenting time and the allocation of decision-making responsibilities. When issues relating to parenting time are contested, and in other cases where appropriate, the parenting plan must be as specific as possible to clearly address the needs of the family as well as the current and future needs of the aging child.”
While parents themselves may sometimes come up with a vague parenting plan which provides for flexibility instead of a specific schedule, when parenting is contested a court cannot simply order the parents to “come together and figure out” the schedule, as the judge did in this case.
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