Civil Contempt, Criminal Contempt, and What it All Means

22 September, 2010 by Lawrence in child support, Contempt of Court

What is contempt of court?

Contempt of court means jail timeContempt of court often comes up when somebody fails to pay their child support.  I’ve written about how you could go to jail for paying child support ahead of schedule.  I’ve written that you could go to jail for paying too much child support, and I’ve discussed paying child support for a missing child.

In all these cases the defendant wasn’t guilty of breaking any law in the traditional sense.  There’s no statute that makes failure to pay child support a criminal offense that requires jail time.  So how does somebody end up behind bars for failure to pay?

Child support (among many other things) is an order of the court.  Courts often order people to do things as part of the conclusion of a case.  In a divorce, this could be an order to turn over property, divide retirement savings, pay alimony, hold assets in trust, visit your children, or just about anything else you can think of.

For example, let’s say as part of a divorce Paul is ordered to turn over the collection of Justin Bieber memorabilia to his ex-wife, Mary.  Paul loves Justin so much that he just refuses to part with his treasure.  He crosses his arms and says, “No way.  No how!”

Contempt means jail for you!Mary’s solution to this problem is to take Paul back to court and ask the judge to find that Paul is in contempt of the court’s order.  One of the remedies available to the judge would be to put Paul in jail until Paul decides he’s ready to cooperate.  This would be an example of civil contempt.  (He should probably also order Paul to get an psychiatric evaluation, but that’s another story.)

Civil Contempt

Contempt of court comes in two flavors: civil and criminal.  Civil contempt is used in a case where somebody has the ability to comply, they just need a little extra motivation.  Civil contempt gives the court the ability to hold someone in jail only until they obey the court’s order.

In the example above, Paul can get himself out of jail at any time.  He simply needs to let the judge know he’s ready to abide by the order.  The sooner he agrees to play by the rules, the sooner he’s out.  Lawyers use the expression “He has the keys to his own jail cell.”

Criminal Contempt

This is for people guilty of contemptOf the two, criminal contempt packs the bigger punch.  Criminal contempt is what a court uses to punish a person for disobeying the court, or in cases where the wrong cannot be corrected.  Because the sentence is meant as punishment, the defendant can’t get out.  Nothing to do but sit in jail.

For example, suppose in my example above Paul simply destroys the collection rather than hand it over to his ex-wife.  Since Paul no longer has the ability to comply with the order, the judge may let Paul sit in jail for 10 days for every item he didn’t return to Mary.  Paul will probably also be ordered to pay Mary the value of the collection.

One important difference between criminal and civil contempt is that a person charged with criminal contempt has all of the constitutional protections enjoyed by anyone charged  with a crime.  This includes the presumption of innocence, a right to an appointed attorney if the defendant can’t afford one, and the right not to testify if he so chooses.

In all the child support enforcement cases I’ve written about, the state was charging the defendant with criminal contempt for failure to pay.  The state would ask the judge for a conviction for each or 18 missed payments, resulting in a sentence of 180 days in jail (the maximum for contempt).

Why is this important?

If you’ve read any of the posts linked above, you might come to think that I believe criminal contempt is a little overused.  You would be correct.  For quite a while now, our desire to “be tough on deadbeat dads” has led the courts to convict people (usually fathers) of criminal contempt for even minor variations on the payment schedule.

What’s worse is the judges wouldn’t accept any defense.  If a guy were to get sick or injured and miss enough work that he was forced to pay his child support late, he might find himself in jail.  I’ve had more than one judge tell a client, “I don’t care if you’re starving and living under a bridge, you pay your child support.”

Criminal Contempt has changed

This was all true until a few months ago.  A new crop of cases have appeared from the Appellate Courts of Tennessee, which change (or correct) how criminal contempt is handled by the lower courts.  My next post will describe how these changes may affect you.

Come back in a few days to see what’s new in child support enforcement.  If your case involves child support payments, it’s information you need to know.