If parenting time is being denied, the first step is to make sure that there is a valid court order which provides for parenting time. If there is, and parenting time as provided in the order is being denied, there are generally two methods of enforcing the parenting time order:
- An enforcement of parenting time process, or
- A contempt proceeding.
Each process has advantages and disadvantages, but for most people the enforcement of parenting time procedure is a more efficient way to enforce parenting time. The following information outlines some of the differences between the two procedures.
The court is required to provide the forms needed for filing an enforcement of parenting time action. The forms are available in the Family Law Department and online through the Oregon Judicial Department. The court does not provide the forms for filing a contempt proceeding, and the Family Law Department staff is not allowed to provide legal advice about how to file a contempt proceeding.
Expedited Hearing Required
The enforcement of parenting time process requires the court to hold a hearing within 45 days, though the hearing often takes place sooner. In a contempt proceeding, the case is handled by the judge who the custody matter is assigned to, and the case is scheduled on that judge’s calendaring docket along with all of the judge’s other cases. Generally, it takes much longer to appear in front of a judge in a contempt proceeding than it does in an enforcement of parenting time proceeding, and the court will usually require one or more pretrial meetings with the judge before setting a date for an actual contempt hearing.
In an enforcement of parenting time proceeding, the court has the authority to:
Specify a more detailed parenting time schedule;
Impose additional terms and conditions on the existing parenting time schedule;
Order additional parenting time, in the best interests of the child, to compensate for the wrongful denial of parenting time;
Order a party who is violating the parenting plan to post bond or security;
Order either or both of the parties to attend counseling or educational classes that focus on the impact that the violation of parenting time has on children; and
Award the prevailing party the filing fees and court costs they have incurred in enforcing the parenting plan.
There are additional remedies the court may order in an enforcement of parenting time proceeding. Those remedies can be found in Oregon Revised Statute 107.434. The Oregon Statutes are available in the Marion County law library on the 5th floor of the Marion County Courthouse.
The contempt statutes can be found at Oregon Revised Statute 33.015 to 33.155. Additional court rules which apply to contempt proceedings can be found in the Oregon Uniform Trial Court Rules. The remedies available in a contempt proceeding include:
Any order the court determines will insure compliance with a prior order of the court and,
In extreme cases, confinement (jail).
Contempt Can Be Harder to Prove
The burden of proof in a contempt proceeding is "clear and convincing" evidence, and if confinement is sought for the offending party, the burden of proof is "beyond a reasonable doubt." If unable to afford one, the offending party is entitled to a court appointed attorney if a sanction of confinement is sought.
The burden of proof in an enforcement of parenting time proceeding is much lower, and requires only that you establish by "a preponderance" of the evidence that there has been a denial of parenting time which justifies the court's intervention. There is no right to a court appointed attorney for the offending party in a proceeding for the enforcement of parenting time.
This information is provided by the Marion County Family Law Advisory Committee, and is not intended to be a source of legal advice. It is intended to provide basic information about different methods of enforcing parenting time to assist parties in determining which procedure may be more appropriate for them. For legal advice or additional assistance, you should contact an attorney.