Demise of Contempt for Child Custody Orders?

by | Dec 10, 2021

November 17, 2021, and its Breona C. v. Rodney D. decision from the Court of Special Appeals, may mark the end of contempt as a meaningful tool for seeking compliance with child custody orders.

The case involved a constructive civil contempt action for failure to follow court-ordered parenting time that had resumed by the time of the contempt hearing.

What is Contempt?

Maryland recognizes several types of contempt:

  1. Constructive civil contempt
  2. Constructive criminal contempt
  3. Direct civil contempt
  4. Direct criminal contempt

This article (and Breona C. v. Rodney D.) focuses on constructive civil contempt, which is disobedience of a court order outside the presence of the presiding judge.  (Direct contempt is disobedience in the presence of a presiding judge.)

The purpose of civil contempt is to enforce the rights of private parties, compel obedience of court orders, and coerce present or future compliance.  Criminal contempt imposes a sanction or past misconduct.

What’s the Difference Between Constructive Civil & Criminal Contempt? (And why does this matter??)

A constructive civil contempt action is filed in the court case in which the violated order issued (Maryland Rule 15-206(a)).  It may be brought by the court, a party in the case, the Attorney General if requested by the court, and the Office of Child Support Enforcement (if for failure to pay child support or alimony) (Maryland Rule 15-206(b)).

A constructive criminal contempt action is docketed as its own criminal case (Maryland Rule 15-205(a)).  It may be brought by the court, the State’s Attorney, the Attorney General, State Prosecutor, or at the option of the last three listed after a request by the court or a person with actual factual knowledge of the contempt (Maryland Rule 15-205(b)).  In short, constructive criminal contempt cannot be brought directly by a parent.

Why does this matter?  Because to my knowledge, no court, State’s Attorney, Attorney General, or State Prosecutor will file for criminal contempt due to a parent’s violation of custody terms in a court order.  Which leaves violation of custody orders in the hands of parents to raise via constructive civil contempt.

What Does Constructive Civil Contempt Do?

If found in contempt, a constructive civil contempt order must:

  1. Impose a sanction on the person in violation;
  2. Include a purge provision giving the opportunity to avoid the sanction by definite, specific action that the person in violation is reasonable capable of doing; and,
  3. Be designed to coerce future compliance with the order (and not punish past, completed conduct).

By performing the purge provision, one avoids the sanction, and in result future compliance is coerced.  If only it were that simple…

Does Breona C. v. Rodney D. mark the practical end of contempt in custody cases?

Probably.  But not entirely.

Breona C. v. Rodney D. makes these critical points:

  • The three parts of a contempt finding (sanction, purge provision, future compliance coercion) must be separate, distinct, and cannot duplicate one another; and,
  • Constructive civil contempt cannot be imposed if the parent is in compliance with the custody order at the time of the contempt hearing.

This invites what I’ll call the “just kidding” strategy of last-minute compliance just before the contempt hearing to avoid contempt (but not necessarily result in future compliance).

Breona C. v. Rodney D. offers one potential saving footnote (#6):

“We are not confronted here with a situation in which a party is engaged in a continuing or repetitive pattern of conduct in violation of a court order that, due to its continuing or repetitive nature, could reasonably be found to be ongoing at the time of a contempt hearing even if the putative contemnor is not technically out of compliance with the order at the moment of the hearing. We do not foreclose the possibility that an order of constructive civil contempt could be issued in such a circumstance.”

What are the takeaways? 

  • If non-compliance stopped before filing for contempt, constructive civil contempt is not available.
  • If non-compliance stops after filing and before the contempt hearing, constructive civil contempt will be difficult to prove, unless the court is persuaded that the history of non-compliance (continuing or repetitive) amounts to current non-compliance (Footnote #6).
  • Consider other enforcement tools & remedies, such as makeup time, modification, and attorney’s fees, if appropriate.
  • Document historic, ongoing non-compliance to preserve a Footnote #6 contempt claim.
  • Be sure the requested sanction, purge provision, and future compliance are each different and don’t duplicate.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation.  Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

You can follow her for discussion, news, and developments in Maryland family law on, and YouTube.