There is disagreement among family law practitioners as to whether modification of custody or placement orders is an appropriate remedy for remedial contempt.
The scenario is one that we often see: one party is willfully and intentionally violating a custody and placement order, and as a sanction for their conduct, a request is made for the court to change the underlying order.
Purpose of Remedial Contempt
It’s important to remember the purpose of a remedial contempt sanction: to coerce compliance with the current orders.1 The aim of remedial contempt is not to punish the contemptuous behavior – punishment for behavior is dealt with through either criminal contempt via Wis. Stat. section 785.03(1)(b) or summary contempt via Wis. Stat. section 785.03(2).
Once a party has been found in contempt, the court can sanction the noncompliant party as outlined in Wis. Stat. section 785.04, including:
- ordering them to payment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as the result of a contempt of court;
- imprisoning them for up to six months;
- making them pay a forfeiture not to exceed $2,000 for each day the contempt of court continues; or
- by entering an order designed to ensure compliance with a prior order of the court.
If these four options would be ineffectual to terminate a continuing contempt of court, the court can fashion an order imposing other conditions – if those conditions serve remedial aims, are able to be fulfilled, and are reasonably related to the cause or nature of the contempt.2
Ay, there’s the rub.
Helpful Caselaw
While not squarely on point, in 1984 in In Re the Marriage of Schwantes,3 the Court of Appeals held that a trial court had no power to condition an award of custody on termination of an ex-spouse’s relationship with another, absent a showing of adverse effect upon the children.
Without making findings consistent with the precursor to Wis. Stat. section 767.41(5)(am) or considering the best interest standard, the trial court overstepped its authority when it conditioned the award of custody on a parent ending a personal relationship with a third party.
In 2006, the appeals court dealt with a similar issue, when a trial court sua sponte modified a custodial order from joint custody to sole custody without following the requirements of the modification statute. In Re the Paternity of Pero, therefore, stands for the proposition that absent a motion, petition, or order to show cause brought by a party seeking a change under the appropriate modification statute or considering the factors outlined in the modification statute, the circuit court lacks authority to modify legal custody.4
Remedy versus Punishment
When fashioning a remedy to correct an ongoing contempt by a party who is violating a custody of placement order, a court has many tools in its toolbox. It is a hard argument to make, however, that modification of the underlying custody and placement order is one of them.
State ex rel V.J.H. v. C.A.B.5 reminds us that courts must provide contemnors with the “keys to the jailhouse door” if they remedy their contempt.
How can a parent remedy their contempt for not following a placement order if the placement order is changed as a sanction for their contempt? Or, how does changing a legal custody as a sanction for a parent not complying with a legal custody order coerce that parent into complying with the legal custody order?
Modification as a remedy to a contempt becomes a circular argument and does not comport with the longstanding aim of remedial contempt: compliance with court orders.
Modification of custody or placement as a remedy for contempt looks very much like punishment for past behavior. Once an underlying order is changed, compliance becomes moot, and without the possibility of compliance, there can be no remedial contempt.6
Best Practice
After closely reviewing the case law and reviewing Wis. Stat. section 785.03(1), I believe a very strong argument can be made that modification of custody or placement is not an available remedy in a remedial contempt proceeding.
Absent a motion to modify filed under Wis. Stat. section 767.451, it is hard to see how a court has the authority to modify custody or placement strictly as a remedy for a party willfully and intentionally violating the custody and placement order.
While a party’s willingness to comply with court orders may be relevant in making custody and placement determinations, modifying those orders as a sanction for violating them is arguably outside of the aims of remedial contempt.
Best practice, if modification is the goal, it to pursue modification under section 767.451 rather than relying on sanctions for remedial contempt.
This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.
Endnotes
1 See In Re: Paternity of Cy C.J., 196 Wis.2d 964, 539 N.W.2d 703 (Ct. App 1995).
2 See Frisch v. Henrichs, 304 Wis.2d 1 at 32, 736 N.W.2d 85 at 100, 2007 WI 102 at ¶64 (2007), quoting Marriage of Larsen, 165 Wis.2d 679, 478 N.W.2d 18 (1992).
3 121 Wis. 2d 607, 360 N.W.2d 69 (Ct App 1984).
4 293 Wis. 2d 781 at 803, 718 N.W.2d 184 at 194, 2006 WI APP 112 at ¶33 (Ct App 2006).
5 163 Wis.2d 833, at 843, 472 N.W.2d 839, at 843 (Ct. App. 1991).
6 E.g., Christensen v. Sullivan, 320 Wis.2d 76, 768 N.W.2d, 2009 WI 87 (2009) and In re the Marriage of Tauber, 2017 AP 1731, unpublished, but citable under Wis. Stat. section 809.23(3)(b).
