An ex-wife should not have been held in criminal contempt for having the parties’ child baptized without first consulting her ex-husband, the Michigan Court of Appeals has ruled.

The criminal contempt finding had to be reversed, the appeals court said in Roller v Roller (Docket No. 324130), because the ex-wife’s due process rights were violated in the following ways:

• she was not informed of the criminal nature of the contempt proceeding;

• she was denied her right against self-incrimination; and

• contrary to the trial judge’s ruling, there was not enough evidence that she had violated, beyond a reasonable doubt, the parties’ divorce judgment.

Facts

The plaintiff and the defendant were divorced and had joint legal custody of their child. The judgment of divorce provided that the parties’ parent coordinator would decide custody disagreements. When the plaintiff filed a motion to have the parties’ child baptized at a Roman Catholic church, the defendant did not answer the motion. Livingston County Circuit Judge Suzanne L. Geddis entered an order granting the motion for baptism. However, unbeknownst to the plaintiff, the child had already been baptized two years earlier. When the plaintiff learned of this, he filed a motion to have the defendant held in contempt, claiming the defendant acted contrary to the divorce judgment. At a hearing before the Friend of the Court referee, the defendant acknowledged that she had the child baptized without telling the plaintiff and indicated the plaintiff had not been receptive to the idea. The defendant asserted that she did not violate any order because there was no order regarding religious matters.

The matter then went before the trial court, where Judge Geddis explained the matter involved criminal contempt. Upon learning this, the defendant asserted that she was entitled to due process. The judge then summarized the issues and possible consequences, accepted the defendant’s not guilty plea, and adjourned for an evidentiary hearing. At the evidentiary hearing, Judge Geddis ruled the defendant had deliberately disobeyed the judgment of divorce, and found her guilty of criminal contempt beyond a reasonable doubt. Although jail time was considered, the judge ultimately ordered the defendant to pay $9,611 in damages, attorney fees, and costs to the plaintiff.

Due Process Violation

The defendant argued on appeal that her due process rights had been violated. The Court of Appeals agreed. “From the outset, she was not informed of the criminal nature of the proceeding against her and was denied her right against self-incrimination,” the appeals court said.

In so holding, the Court of Appeals pointed to several factors:

• the contempt motion made no mention of criminal contempt;

• at the FOC hearing, it was not clarified whether the contempt was civil or criminal; and

• before giving testimony “that could only be described as self-incrimination,” the defendant was not advised of the criminal nature of the proceeding or her right against self-incrimination.

The Court of Appeals noted the trial court eventually clarified the criminal nature of the proceedings. However, this “after-the-fact clarification” did not cure the due process violations that had already occurred, the appeals court said. As a result, the trial court erroneously issued an order finding the defendant in criminal contempt, the Court of Appeals held.

Other Remedies?

What remedies are available to a parent when the other parent violates joint legal custody, whether it is by secretly baptizing a child, taking the child to therapy, or enrolling child in a school? Based on the Roller decision, criminal contempt appears to be an option, as long the offending party receives notice of the criminal nature of the proceedings. It seems that fines could also be imposed in the criminal context as well. Meanwhile, civil contempt also remains a possibility. However, civil contempt is typically used to force a parent to do something, while criminal contempt is used to punish.

Perhaps another remedy is to have joint legal custody changed to sole legal custody for the non-offending parent.

Requesting a change in custody is risky, though. In fact, trial courts have done the exact opposite, rewarding a parent who violated joint legal custody with sole legal custody because the parties could not agree on major decisions. It doesn’t seem fair, however, that a parent should benefit for violating a court order.