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Can a Child Be Held in Contempt of Court for Non-compliance with Child Custody and Parent-time Orders?

A minor child of divorced parents need not be a party to the divorce action to be subject to the court’s contempt power. See Crank v. Utah Judicial Council, 20 P.3d 307, 314-315 (Supreme Court of Utah 2001) (accord Iota, LLC v. Davco Management Co., LC, 284 P.3d 681, fn. 9 (Court of Appeals of Utah 2012)): 

¶ 25 Clearly, a trial court has the power to hold non-parties in contempt if those parties conspire to frustrate a lawful order of the court. See id.[1] Specifically, a person may be held in contempt for “[d]isobedience of any lawful judgment, order or process of the court,” id.[2] § 78–32–1(5)[3], or “[a]ny other unlawful interference with the process or proceedings of a court,” id. § 78–32–1(9). However, a court’s power to hold any person in contempt, whether a party to a case before that court or a non-party, is subject to constitutional and statutory restraints regarding the process due to any person so accused. See Von Hake v. Thomas, 759 P.2d 1162, 1169–70 (Utah 1988).

¶ 26 The basic constitutional requirement for due process is that “the person charged be advised of the nature of the action against him [or her], have assistance of counsel, if requested, have the right to confront witnesses, and have the right to offer testimony on his [or her] behalf.” Burgers v. Maiben, 652 P.2d 1320, 1322 (Utah 1982). The Utah Code seeks to implement this mandate by “set[ting] out two distinct procedures to be followed in contempt adjudications, one when the contempt is direct, i.e., committed in the presence of the judge, and the other when the contempt is indirect, i.e., committed outside the presence of the judge.” Thomas, 759 P.2d at 1169.

¶ 27 . . . “Indirect contempt . . . can properly be adjudged only in a proceeding more tightly hedged about with procedural protections.” Thomas, 759 P.2d at 1170. In such cases, the Utah Code amplifies upon the basic due process requirements of notice and opportunity to defend. See id. Section 78–32–3[4], in pertinent part, provides as follows:

When the contempt is not committed in the immediate view and presence of the court or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators or other judicial officers.

¶ 28 Thus, in Utah, the statutory requirement of an affidavit is a procedural prerequisite to the imposition of any sanctions for indirect contempt. See Thomas, 759 P.2d at 1171; see also Khan v. Khan, 921 P.2d 466, 468 (Utah Ct.App.1996); Boggs v. Boggs, 824 P.2d 478, 481–82 (Utah Ct.App.1991).

Clearly a non-party to a Utah State district court action can be subject to contempt proceedings and sanctions where the acts or omissions of a non-party or parties frustrate(s) a lawful order of the court. There is no “non-party” basis for the court’s refusal to issue an order to show cause for failure to comply with a court’s child custody and parent-time orders. Even if, arguendo, the minor child is not a party to a parents’ divorce proceedings, the child is nevertheless clearly subject to the jurisdiction of this court for contempt.[5]

A court’s child custody and parent-time orders are clearly directed to both to the parents and to the minor children, and simply by virtue of either 1) a child following the custody and/or parent-time schedule; or 2) a parent making attempts to communicate with and engage with a child in the exercise of the custody and parent-time schedule, a child is not on notice of, and possesses knowledge as to the nature and contents of, the court’s child custody and parent-time order,

Crank v. Utah Judicial Council clearly establishes that the power of a court to hold a person in contempt is not limited by the formal designation of the parties. As shown in footnote 5 herein, common law principles further bolster the fact that the trial court has the power to hold in contempt a minor child subject to a divorce court’s child custody and parent-time orders.

I am not aware of any authority for the propositions A) that a minor child can be (for lack of a more exacting term) “exempted” from contempt of court proceedings or B) that a court has the discretion to deny an order to show cause movant relief in the form of an issuance of an order to show cause when the motion for order to show cause is duly made in compliance with Utah law.

Parents are, as are all Utah residents, entitled to the equal protection of the law and to enforcement of the court’s orders. Refusal to issue an order to show cause to a child who refuse to comply with a court’s child custody and parent-time orders could and almost certainly would result in denying the parent of due process of law (Utah Constitution, Article 1, Section 7), denial of his right to the redress of injuries (Id., Section 11), denial of the uniform operation of laws (Id., Section 24), and denial of fundamental rights (Id., Section 27).

Given that Utah law clearly and inarguably shows that a child is subject to the court’s contempt power in regard to noncompliance with child custody and parent-time orders:

  1. an order to show cause to a child for noncompliance with the court’s custody and parent-time orders (to show the child, the parents, and the public at large that law shall be obeyed); and
  2. use of an order to show cause to enforce the court’s order (and thus uphold the principle that a court has the actual power to enforce its own orders) through the civil courts process (as opposed to a party taking the law into his/her own hands and/or flouting the rule of law),

is entirely suitable and proper.

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[1] Citation was to Utah Code § 78-32-3, which was renumbered as Utah Code § 78B-6-302:

(1) When a contempt is committed in the immediate view and presence of the court, or judge at chambers, it may be punished summarily. An order shall be made, reciting the facts occurring in the immediate view and presence of the court. The order shall state that the person proceeded against is guilty of a contempt and shall be punished as prescribed in Section 78B-6-310.

(2) When the contempt is not committed in the immediate view and presence of the court or judge, an affidavit or statement of the facts by a judicial officer shall be presented to the court or judge of the facts constituting the contempt.

[2] Citation was to Utah Code § 78-32-3, which was renumbered as Utah Code § 78B-6-302. See fn. 1 supra.

[3] Utah Code § 78-32-1 was renumbered as Utah Code § 78B-6-301:

78B-6-301. Acts and omissions constituting contempt.

The following acts or omissions in respect to a court or its proceedings are contempts of the authority of the court:

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(5) disobedience of any lawful judgment, order or process of the court[.]

[4] Utah Code § 78-32-3 was renumbered as Utah Code § 78B-6-302. See fn. 1 supra.

[5] Note: The following arguments are adapted from a decision from the Appellate Court of Illinois, In re Marriage of Marshall, 663 N.E.2d 1113 (1996), a divorce action in which children were held in contempt of court for violating the trial court’s visitation orders:

If a child is subject to the control of each of her joint legal and physical custodial parents, she is bound by the court’s child custody and parent-time orders. Furthermore, the district court also possesses jurisdiction over the child under Utah Code §§ 30-3-5(3) and 78B-13-202. Given that jurisdiction over a person is the court’s power to bind a particular person to its orders, and given that the court clearly has the power to bind the child to its child custody and parent-time orders (and in fact has done just that with its child custody and parent-time orders) the district court has jurisdiction over the child; thus the child could very well be deemed one of the parties to the divorce action.

Rule 65A(d) of the Utah Rules of Civil Procedure provides, in pertinent part, that every order “granting an injunction shall” . . . “be binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive notice, in person or through counsel, or otherwise, of the order.”

Rule 65A’s provisions cited above are derived from the common law doctrine that a decree of injunction not only binds parties defendant but also those identified with them in interest, in “privity” with them, represented by them or subject to their control. See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); Regal Knitwear Co. v. National Lab. Rel. Bd., 324 U.S. 9, 65 S.Ct. 487, 89 L.Ed. 661 (1945).

See also Petersen v. Fee Intern., Ltd., 435 F.Supp. 938, 941-942 (United States District Court, W. D. Oklahoma, 1975):

“The essence of the doctrine is that defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors although they were not parties to the original action. Regal Knitwear Co. v. National Lab. Rel. Bd., supra. In the older cases a decree of injunction was generally directed to the party defendant, his officers, agents, servants and employees. The object of this generalization was to prevent defendants from doing by others that which the Court had forbidden them to do personally; from accomplishing indirectly a result prohibited by the Court. The full effect of such an order was that the defendant shall not do the prohibited act himself, neither shall his agent, servant, or employees do it for him, nor shall the defendant do it as the agent, servant, or employee of another. Dadirrian v. Gullian, 79 F. 784 (D.N.J.1897).

Thus under this concept a child is also bound by the court’s child custody and parent-time orders. Joint custodial parents are parties bound by the terms of the court’s child custody and parent-time orders. The joint legal and physical custodial parent or parents exercise(s) control over the minor child, and the child is subject to the control of her parent(s), the child is thus bound by the court’s child custody and parent-time orders.

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