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The enforcement of child custody orders by contempt remedies

Mahoney, MM (2007) The enforcement of child custody orders by contempt remedies. University of Pittsburgh Law Review, 68 (4). 835 - 877. ISSN 0041-9915

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Abstract

Family law statutes in every state govern the child-related issues that arise at the time of divorce. As a general rule, these statutes require the divorce courts to enter coercive orders that will govern the residential and decisionmaking aspects of post-divorce parent-child relationships. The laws in many states also set out the remedies, including civil and criminal contempt, available to enforce court-ordered parenting plans in the event of parental noncompliance. This area of statutory regulation, which touches the lives of millions of families every year, is in many ways sui generis. At the same time, the coercive nature of the court-ordered terms of post-divorce parenting plans, and the availability of enforcement by civil or criminal contempt remedies, place custody and visitation orders in a larger doctrinal context. This Article analyzed child custody and visitation laws against this backdrop of the law of injunctions and the law of contempt. The family law system assigns priority to the maintenance of established relationships between children and both of their parents following the parents' divorce. This priority leads to certain variations from the general model of injunctive remedies in many child custody cases. For example, divorce courts formulate the initial coercive parenting orders, which become immediately enforceable by contempt remedies upon violation by one parent, without making any determination of prior wrongdoing by either parent. Furthermore, the courts routinely enter coercive orders addressing the residential and decisionmaking aspects of post-divorce parenting, even though the anticipated period of judicial regulation is lengthy (until the children's ages of majority), and despite evidence of likely compliance problems. Finally, in the event of parental noncompliance, judicial enforcement via contempt remedies may involve the entry of orders that vary significantly from the classic contempt model, especially when the contempt remedy is civil rather than criminal in nature. Parenting plan orders typically set out specific responsibilities for both parents, to be performed over a period of years until the children become adults. The nature of these orders, involving recurring patterns of family behavior, and the importance of the interests that they seek to protect have shaped many of the family law doctrines discussed in this Article. These doctrines have molded the general law of injunctions to fit a unique legal context, the creation and enforcement of post-divorce custody orders.


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Details

Item Type: Article
Status: Published
Creators/Authors:
CreatorsEmailPitt UsernameORCID
Mahoney, MM
Date: 1 June 2007
Date Type: Publication
Journal or Publication Title: University of Pittsburgh Law Review
Volume: 68
Number: 4
Page Range: 835 - 877
Schools and Programs: School of Law > Law
School of Law > Law > Faculty Publications
Refereed: Yes
ISSN: 0041-9915
Article Type: Review
Date Deposited: 29 Mar 2013 15:50
Last Modified: 29 Jan 2019 15:55
URI: http://d-scholarship.pitt.edu/id/eprint/17950

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