Washington Court Upholds Contempt Order Against Mother After Child Goes Missing

Parents are expected to comply with the parenting plans that set forth custody and visitation arrangements for their children.  If a parent fails, in bad faith, to comply with a court order in a Washington custody case, the court may find that parent in contempt of court.

A mother recently challenged a contempt order against her.  The court found her in contempt after she failed to transfer her daughter to the girl’s father in accordance with the parenting plan.  There were two additional contempt orders, a writ of habeas corpus and a warrant.  The mother appealed.

According to the appeal court’s opinion, the daughter had special needs.  The psychologist found the she was estranged from her father for “completely irrational” reasons that were the result of her anxiety and OCD.

The father had not seen his daughter in about a year at the time of trial.  The parenting plan included a three-phase transition, wherein the child would increase her residential time with her father and start living with him half the time in April 2027.  The court also gave the father sole decision making authority as to education and medical care.

The court entered the order of contempt in July 2017, upon finding that the mother withheld the child from her father during his scheduled residential week. The trial court found in its first contempt order that the mother had the ability to require the child to go to her father’s and that she had shown she was unwilling to follow the parenting plan.

It entered another contempt order, finding the mother again failed to obey the parenting plan and alternatively that the child had resisted the residential time and the mother had contributed to that attitude or failed to make reasonable efforts to make her comply.  The court ordered the child to reside with her father from July 28 – September 15.  The daughter went missing from her father’s home that first night.  The mother did not cooperate in trying to find her or comply with the court order that she provide information about contact she had with the child.

The trial court ordered a writ of habeas corpus on the father’s motion and issued a warrant to enforce it.  The trial court entered a third contempt order on September 21.  The mother appealed, and the child was still missing when the appeals briefs were filed.

The mother argued that the appeals court should vacate the contempt order because she did not have the ability to comply with the parenting plan.  Parents are presumed to have the ability to comply with the residential provisions of a parenting plan, and the non-compliant parent has the burden of proving otherwise or that they had a reasonable excuse.

The mother argued that she wanted the child to spend time with her father.  She also argued her child’s special needs made it more stressful and difficult for her to transition.

The parent is generally not punished if the child is “truly recalcitrant,” but may be punished for contributing to the child’s attitude or failing to overcome the child’s resistance when able to do so.  The appeals court found the mother had a history of alienating the child from her father and had been controlling of the child’s education and healthcare.  The trial court also found it to be in the child’s best interest for the father to have exclusive decision making authority over the child’s education and health care.

The mother argued that the writ of habeas corpus was improper because the court had not stated one of the parents was restraining the daughter.  A writ of habeas corpus may be issued to a parent for the protection of the child.  The mother argued that a writ was only appropriate where there was illegal restraint by an individual.  Here, the writ directed law enforcement to find and take petition of the child. That is what the statute that authorizes the writ requires.  The appeals court found that, pursuant to the parenting plan and orders, the child was legally supposed to be in her father’s custody and if she was somewhere else without his permission, then she was not legally in the custody of another person.  The purpose of the writ was to find the child and return her to her father.  The appeals court found the writ had been properly issued.

The mother also argued the warrant was “based upon a falsehood—the illegal restraint of a child.”  Washington law allows a court to issue a warrant to aid a writ of habeas corpus.  The warrant authorized law enforcement to enter any building or vehicle where they had reason to believe the child was.  It also allowed them to enter any building or vehicle “where information pertaining to the location of the child(ren) may be found, i.e., the residence of [the mother].” The mother argued the warrant lacked the constitutionally-required particularity.  She also argued including her address on the warrant was contrary to the court’s findings at the hearing.

The appeals court found the warrant was particular to the facts of the child’s disappearance.  It allowed officers to enter a location if they had reason to believe the girl was inside.  It also only allowed law enforcement to detain the mother if she impeded their efforts to retrieve the child.

The appeals court affirmed the trial court.  It also found the mother had harmed the father by acting in bad faith in not complying with the court’s orders and ordered her to pay the father’s attorney fees.

Not complying with a parenting plan can have serious consequences.  If you are facing a custody issue, a skilled Washington family law attorney can help you protect your rights and access to your child.  Call Blair & Kim, PLLC at to schedule a consultation.

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