Does Being in Contempt of Court Prevent a Modification of Child Custody or Support?


Will a party's motion modify an order of child custody and child support be dismissed if that party is in contempt because he or she has missed child support payment?

Not always. When a party is in contempt of court there are two different types of sanctions or penalties that can be applied: civil sanctions or criminal sanctions. A civil sanction is conditional – meaning that the party in contempt can avoid sanction by doing the action that he or she was previously ordered to do. This is sometimes called "purging" the contempt. A criminal sanction is not conditional; it is a set penalty that is given as a form of punishment for violation of a court order or law.

The criminal sanctions for nonpayment of support are set forth in Idaho Code §7-610 (possible fines and jail sentence). This section does not include denial of access to the courts as a possible criminal sanction. So when a party is in contempt a judge should not be able to use dismiss a motion to modify as a form of criminal sanction. (State of Idaho (IDHW) v. Slane v. Adams, Idaho Supreme Court Docket No. 39766-2012, August 2013 Term )

In a recent case (State of Idaho (IDHW) v. Slane v. Adams) the Idaho Supreme Court found that it was improper for a magistrate court to dismiss a Motion to Modify because the father was in contempt for nonpayment of child support. The father had been found in contempt for failing to pay one month of child support, but by the time sentencing came around the judge also found that the father had failed to pay an additional 7 months of child support that were not part of the original motion for contempt.

Included in the judge's sentence on the contempt finding was the requirement for the father to repay the full 8 months of support that he had not paid. The father filed a Motion to Modify and the judge dismissed the motion in part because the father had not paid the full 8 months of support that he had missed.

The Idaho Supreme Court found that this requirement to pay the full 8 months cannot be a civil sanction, because the action required to purge the contempt (payment of 9 months of support) was not performing the act for which he was found in contempt (failure to pay one month of support). Dismissing the motions was also not a civil sanction, because that action was not conditional, those motions were dismissed entirely, thus the penalty was unconditional.

Because these could not be civil sanctions, they would have to be criminal sanctions, and they were sanctions not permitted by Idaho Code §7-610. The magistrate court's decision to dismiss the father's Motion to Modify was found to be improper and thus overturned by the Idaho Supreme Court because dismissal is not a civil sanction nor is it a permissible criminal sanction for nonpayment of support.

The Idaho Supreme Court also stated that refusal to hear a motion and the dismissal of a motion on the grounds that a party has not purged contempt violates Article I §18 of the Idaho Constitution. Being in contempt of court does not justify the denial or delay of right and justice.