Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, November 29, 2005

Case Law Development: Contempt for Unilateral Attempt to Change Visitation Schedule

In case involving a complex and contentious visitation plan, the Ohio Court of Appeals upheld contempt against Mother for attempting to change a visitation schedule without seeking amendment of the court order. The court rejected Mother’s argument that the court order was void because it had contained a provision invalidating the order upon Father’s failure to exercise visitation and that Father had failed to meet the required visitation schedule. The court sentenced her to thirty days in jail, suspended on condition that she purge her contempt by paying Father's attorneys fees and providing additional visitation.

Robinson v. Robinson, 2005 Ohio 6240; 2005 Ohio App. LEXIS 5612 (November 23, 2005)
Opinion on the web at (last visited November 29, 2005 bgf)

The divorce in this case, designated Mother the residential parent for child, and established a progressive visitation schedule for Father, under which he would have supervised then unsupervised visitation for increasingly longer periods of time until the standard visitation schedule was finally applied. The agreed order required that Father “make each visit to get to the next level" and stated that if Father missed 2 out of 4 visits, then the agreement is “null & void." The order provided that changes to the visitation schedule were to be communicated to Father’s attorney by Fridays at 8:00 p.m.. Mother had faxed the required notice to Father’s attorney to change a Saturday visitation and also stated in the notice that she was changing the visitation hours from afternoon to morning beginning the next week.

The appellate court concluded that this was an attempt by Mother to change the time for visits unilaterally, and that the agreed order did not allow her to do so.  “A court order is not subject to modification by the parties, at least not unless the order provides the parties with that power. In general, a court order can only be modified by another court order. Appellant could not unilaterally alter the visitation schedule because the court order did not give her the power to do so; her attempt to do so constituted contempt.”

The Magistrate had found that Mother had not provided sufficient proof that Father had failed to appear for two of his required visits, making the “null and void” provision of the order inapplicable. The court of appeals agreed and noted in a footnote that it questioned whether such a provision would bind a court in any case.

Finally, Mother argued that the court’s requirement that she purge the contempt by providing Father with both Saturday and Sunday visitation was expanding visitation beyond that which the court had originally found appropriate. “When a party is found to be in contempt for failing to comply with an order providing parenting time or visitation, the court may award reasonable compensatory parenting time or visitation to the person whose right of parenting time or visitation was affected, if such compensatory parenting time or visitation is in the best interest of the child. While the court's inclusion of compensatory visitation time as a purge condition is unusual, [Mother] has not demonstrated that the additional visitation was not in the child's best interests.

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