Is it time to file a contempt petition in Illinois family court? When you have an Illinois Court Order that is incorporated into a Judgment for Dissolution of Marriage it details the provisions that are required for each party to follow. But if a party fails to follow through with the terms of a Parenting Agreement, Allocation Judgment or Marital Settlement Agreement, the Illinois Marriage and Dissolution of Marriage Act provides a process for bringing that party back to court to enforce what the judgment requires them to do, or in some cases, not do.
Parenting Agreement/Allocation Judgments and Marital Settlement Agreements are extremely detailed documents, which makes it easy for someone to inadvertently violate the order, at some point in time. Inadvertent violations are typically easily resolved without court intervention because once the violation is pointed out by one party to the other, it is quickly resolved. When a Judgment or Marital Settlement Agreement is violated purposefully or willfully, it is a whole other story. However, when an order is violated purposefully or willfully without cause or justification, it is a whole other story.
Indirect Civil Contempt for Refusal to Abide by a Court Order
In scenarios where someone is willfully refusing to abide by a court order, the Court has the power to hold that person in indirect civil contempt of court. The procedures to follow in contempt proceedings differ according to the type of contempt at issue. Contempt can be either direct (in the presence of the court) or indirect which is when something happens outside the presence of the court. Because Indirect contempt is alleged to have happened outside the presence of the court proof of willfully disobeying a court order is required for a finding of indirect contempt. In addition, civil contempt is a penalty given to compel future compliance with a court order which is coercive in nature rather than a punishment for past conduct.
Civil Contempt Proceedings
When you ask the Court to hold someone in contempt for non-compliance with a court order, the person you want to be held in contempt must be able to do what the court order requires them to do and have the opportunity to comply with the order. For this civil contempt proceedings, the person alleged to have not followed a court order is entitled to notice and an opportunity to be heard and it is initially the burden of the person bringing the action to court to prove by a preponderance of the evidence that the order has been violated. Once the court finds that there is evidence that the court’s order has been violated, the burden shifts to the person who is alleged to have violated the order to show why they should not be held in contempt by showing that either they did not violate the courts order or the violation was not willful and there was good reason for such violation or non-compliance with the court order.
Criminal Contempt Actions
On the other hand, there is criminal contempt which is punitive and used to punish the person who has violated the court’s order. For criminal contempt proceedings the person alleged to have not followed a court order is entitled to:
- details of the charge, an opportunity to answer,
- has a privilege against self-incrimination,
- the presumption of innocence and
- in this case, the person bringing the contempt petition must prove beyond a reasonable doubt that the person violated the court’s order.
In addition, in a criminal contempt proceeding, the person alleged to have violated a court order has a right to counsel.
It is important to cover all of your bases when filing a contempt petition to create a rebuttable presumption of contempt, upon the review of the pleading. This also means you should execute your contempt petition and make it verified (which is required for all pleadings in Cook County). These tips assist in getting the motion before the Court and avoiding any situations where a Judge can say that something should have been done prior to filing the contempt petition.
Contempt Petitions During COVID-19
During 2020 we have brought and defended many contempt petitions for the failure to abide by a parenting time order during COVID-19 and the stay-at-home orders. These were taken on a case-by-case basis with different facts for each case as a global pandemic was not contemplated by anyone. The parenting time orders require the children to be with one parent on a certain day and with the other parent on certain days, but what do you do when there is a stay-at-home order?
Do courts find it to be contempt if you keep your children from going to the other parents’ home?
Court’s have definitely found this to be contempt in some cases and not in others. The court will look at how far the parties live apart, how they travel from one home to the other, are the parents working from home or are they essential workers going out into the community, do either parent live with an elderly person or are the children immuno-compromised? All of these things are taken into consideration when a contempt petition is filed during COVID-19.
Contempt Petitions Related to School
In addition, many contempt petitions were filed relating to school. If the children were going to go back to school in person or change schools; vacations were another area of many contempt petitions. For example, one party has a two-week vacation per court order and plans to take the children on an airplane or another state during COVID-19. The other parent feels that would not be best for the children and refuses to allow the children to go. The court will look at all factors and they will either rule that this is a violation of the court order and contempt, as there is no good cause or justification for keeping the children away from the other parent or they, may say that it is a violation of the court order but no contempt because COVID-19 is a justifiable reason to keep the children home.
Contempt requires detail and proof of any violation and a finding that the violation was willful. Each case has different facts and proof available and should be reviewed with an attorney for an evaluation. For guidance with a potential contempt petition or compliance with a family court order, contact Anderson & Boback today for a free consultation. Our experienced family law attorneys are here to help!