One of the most difficult decisions that an attorney and client face, is the determination as to when to file a Petition for Contempt of custody orders. The general burden of proof in the Commonwealth of Pennsylvania for contempt of a custody order is proof of a violation of the Order by a preponderance of evidence along with proof of willfulness in the violation of the order. This is obviously an incredibly subjective standard.
Typically, in high conflict divorces with contentious custody battles, both parties tend to commit acts of contempt. But the reality is that filing a Contempt Petition for each and every violation of the custody Order is a mistake. For instance, filing a Contempt Petition if someone is a half an hour late to pick up or drop off is probably a mistake no matter how irritating or disruptive this lateness may be. The reality is that your attorney will probably want to see a pattern of abuse of this type of order over a period of time involving at least a month prior to filing for contempt.
Secondarily, a tactical question that must be asked, is what on can actually gain from filing for contempt. The unfortunate fact is that at the very best, you will get your ex-spouse reprimanded by the Court and perhaps the Court will issue a fine. But if you are dealing with a wealthy opponent, they could simply pay the fine and continue to act in contempt of the Order. Other individuals won’t even bother to pay the fines, forcing your attorney to spend time and effort and your money in an attempt to enforce the penalties proffered by the court.
In our opinion, a Contempt Petition should only be filed when there is a clear pattern of abuse or if you conclude that the type of contempt in which the opponent engages, ends being strategically important in a future custody battle. Such strategically useful contempt judgements would include failure to bring children to planned activities, medical treatment or scholastic endeavors.
Although frequently, violations can be extremely irritating, simply filing Contempt Petitions without a plan of action for the use of the contempt is probably a waste of time and your money.