When Failure To Allow Parenting Time Isn’t Indirect Contempt


That’s not one of my catchier titles, but it’s apt for this post. Parenting time (also known as visitation) is time a parent spends with his or her child. We often don’t think about parenting time during a marriage or committed relationship because it occurs so regularly and so freely, but following a divorce or separation, parenting time can become a rare and valuable commodity. After the demands of work, school, extracurricular activities, and social engagements, it can be hard for a parent to find a substantial chunk of time to spend with his or her child. This is especially true for the non-residential parent. Where a parent lives separate from his or her child, this scheduling becomes that much more complicated and parenting time that much more precious.

Visitation schedules are negotiated during a divorce and are not often modified. That means that a couple may agree upon a visitation schedule when their child is 3 or 4 years old and not revisit it. This typically occurs in two scenarios: (1) as the child grows up, the parties form informal agreements with each other and deviate from the parenting schedule to meet their and the child’s needs; or (2) the parties know they will never agree on a new schedule, so they both hold onto the old one, broken as it may be, because they fear that the alternative is litigation and little progress.

The problem with scenario #2 is that it hardly reflects the routine change of circumstances that occurs throughout a child’s life. It goes without saying that a 4 year old child will have different needs, and a different schedule, than a 16 year old child. Further, the older a child gets, the more likely a court is to consider his or her wishes. What does this mean in practice? It means that sometimes there’s Indirect Contempt of Court and sometimes there’s indirect contempt of court.

This is best exemplified by In re the Marriage of McCormick, 2013 IL App (2d) 120100. In McCormick, the mother was granted residential custody of the parties’ 3 children following the divorce. The case concerned the mother failing to adhere to the parties’ parenting time schedule. The mother’s reasoning was that the children had extracurricular activities or other social engagements that conflicted with their father’s parenting time. The children expressed a preference to stick with their plans and, consequently, their mother did not force them to spend time with their father.

There are three important points in this case, one of which is explicit while the other two are implicit. The explicit point is: a violation is a violation. Even though the trial court was unimpressed by the mother’s violations, the appellate court noted that she did violate the order and was on notice to change her behavior. At the end of the day, nearly any violation of a court order is an invitation for a finding of contempt. It’s always best to seek a modification than to roll the dice.

The first implicit point is that trial courts understand that the world is a messy place. They are the judiciary’s boots on the ground, as it were. They sort through facts, listen to testimony, and have more much involvement with the parties than either the appellate or supreme court. So while contempt a violation is a violation, sometimes a court will look the other way or suggest that the petitioning party show a bit of understanding. This is very clearly what happened in this case. While the mother did violate the parenting time order, she was not found in contempt.

The second implicit point is that a failure to find someone in contempt indicates that the violator’s course of action is not contemptuous. As the appellate court noted in passing, “the trial court ‘misled Amy by suggesting that she could legitimately second-guess the visitation schedule…'” It is, by and large, a bad idea to continue to violate a court order solely because the court failed to issue a finding of contempt after the first violation. That said, this ruling certainly indicates that subsequent violations may not constitute contempt if the court did not find the first such violation to be contemptuous.

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