WHEN A PARENT REFUSES TO COMPLY WITH A PARENTING ORDER

SS v, MS, 2022 NY Slip Op 51090 - NY: Family Court 2022:

"Whereas Respondent has demonstrated all of the elements of contempt by clear and convincing evidence, the court finds that Petitioner is in contempt of the court for failing to comply with the courts temporary orders of visitation dated May 16, 2022 and June 13, 2022. Having made this determination, the court must now determine the appropriate penalty. The purpose of any penalty imposed is not to punish but rather, to compensate the aggrieved party and to coerce compliance with the court's mandate (State of NY v Unique Ideas, 44 NY2d 345, 350 [1978]; Larisa F. v Michael S., 122 Misc 2d 520, 521 (Fam Ct Queens County 1984]). Respondent seeks an order of commitment, an award of sole legal and physical custody to Respondent, that Petitioner's parenting time be limited to supervised visitation only, and for such other and further relief as the court deems just and proper.

With respect to the request for supervised visitation, Respondent did not raise any safety concerns on this motion regarding Petitioner's parenting that warrants limiting her parenting time to supervised visitation only. Additionally, although some courts have suggested that a change in custody may result from a finding of contempt under certain circumstances (see Heintz v Heintz, 28 AD3d 1154, [4th Dept 2006), this is strongly the minority position and is not an appropriate result here. Respondent withdrew his custody petition on March 29, 2022 after Petitioner filed her own motion for contempt and does not currently have a custody petition pending before this court. If Respondent wishes to seek an order of custody, he may do so by following the proper procedure.

Finally, the court must consider Respondent's request for an order of commitment. The violations in question here took place over a period of eight weekends and Petitioner has complied with the temporary order of visitation since that time. Therefore, an order of commitment, which is designed to compel compliance with the court's orders, would serve no purpose at this time (see Rubin v Rubin, 78 AD3d 812, 813 [2d Dept 2010]). Respondent should instead be compensated for what was lost—namely, valuable bonding time with the children. Therefore, it is the order of the court that Respondent shall have, in addition to the weekend parenting schedule currently in place, makeup overnight parenting time on the following school holidays: November 11, 2022, November 24, 2022, November 25, 2022, December 26, 2022 through January 2, 2023, January 16, 2023, February 20, 2023 through February 24, 2023, April 6, 2022, and April 7, 2022. The pickup and drop off schedule for these visits shall be as follows:

November 10, 2022 at 5:00 p.m. through November 13, 2022 at 6:00 p.m.

November 23, 2022 at 5:00 p.m. through November 27, 2022 at 6:00 p.m.

December 23, 2022 at 5:00 p.m. through January 2, 2023 at 6:00 p.m.

January 12, 2023 at 5:00 p.m. through January 16, 2023 at 6:00 p.m.

February 17, 2023 at 5:00 p.m. through February 26, 2022 at 6:00 p.m.

April 5, 2023 at 5:00 p.m. through April 9, 2023 at 6:00 p.m.

Any failure on the part of Petitioner to produce the children to Respondent on these dates, absent just cause, shall result in further findings of contempt punishable by an order of commitment."