Sometimes a PPO may prohibit a person from contacting his or her former spouse, girl or boy friend, or cohabitant in person or by telephone, and may limit any contact to emails or writings. If the parties have children in common, such a PPO might permit specific telephone contact with the children and/or might permit certain kinds of exchanges of the children for parenting times.
The Michigan Court of Appeals just decided two cases – actually two separate incidents between the same parties that were brought to the court in two separate appeals – that should help parents in these situations avoid criminal prosecution for violations.
The issues before the Court were: does leaving a message on an answering machine violate the PPO and does driving by the ex-wife’s house violate the PPO?
There is a great danger of prosecution for criminal contempt if a party violates a PPO. A father or mother separated from the children will certainly wish contact with the children. It is very important to understand how a parent can get contact with the children safely without subjecting himself/herself to criminal prosecution, fines, and jail time.
Reviewing these two recent cases will help you to understand how important it is to consider carefully and to comply with the exact wording in the PPO to avoid a violation and criminal contempt prosecution.
Messages left on an answering machine:
In Ottevaere v. Tweddle, Docket No. 255776, decided December 20, 2005, a PPO prohibited personal contact with the children’s father’s ex-wife and permitted certain other specific kinds of non-personal contact with her. The PPO also allowed certain scheduled telephone contact with the parties’ children.
Later, the father was convicted of criminal contempt for violating the PPO because he left a message for the children on the answering machine and later called and asked the mother to put the children on the phone. The Michigan Court of Appeals was asked to decide whether the terms of the PPO were so vague that the order was impossible to comply with.
The Court of Appeals concluded that a reasonable person could easily understand the telephone calls the father made would violate the PPO. The PPO language clearly indicated this father could only call the parties’ children at prearranged times. The PPO did not prohibit him from contacting the petitioner-ex-wife by e-mail, in writing, or by means of a third-party intermediary. The Court, therefore, upheld his criminal conviction.
Driving by the house:
In a separate appeal, Ottevaere v Tweedle, Docket No. 259078, also decided on December 20, 2005, the Court of Appeals held that the father’s acts – driving by his ex-wife’s home – also violated the PPO. For this, he was committed to jail for 30 days and also ordered to pay a $500 fine. The Court of Appeals held that the trial court correctly found that the father’s appearance at his ex-wife’s home on the one occasion at issue constituted contempt.
In this case, the parents were divorced after a six-year marriage and had two children together. After the divorce, the mother alleged that her ex-husband had physically threatened her, had made harassing and intimidating phone calls, had repeatedly threatened to not return the children after visitation, and had battered her during a visitation exchange. The trial court issued a PPO that prohibited him from stalking as that is defined by statute and from appearing at her work place or residence.
The evidence at a hearing on the alleged violation showed that the mother’s fiancé had witnessed the father drive slowly past her house with the car window rolled down and that his child had also recognized his father.
The father argued the trial court was required to find beyond a reasonable doubt that he had committed a course of conduct involving two or more instances of harassment before holding him in contempt. There had been the prior telephone violation. The Court of Appeals held that because the trial court originally granted the PPO because it found the mother had established a course of harassing conduct by her ex-husband, any further violation, including his arrival at her home, (whether she was there or not), would merely add to the established series and continue the harassment contrary to both the statute and the plain language of the PPO.
The lesson to be learned: people need to be very careful to avoid being held in criminal contempt and being sent to jail. There is a zero tolerance on the part of the court system for domestic violence of any kind, as should be the case. Err on the side of caution To avoid the danger of being held in contempt, parents should try to involve third parties for contacts, should stick strictly to court orders for telephone contacts, and should – if possible – involve agencies to buffer child exchanges to avoid being accused of violating court orders.
See my website for parenting time options, which include Safe Haven, an agency organized under Child and Family Services, that provides services for safe exchanges and supervised visitation in the Grand Traverse County area. (Scroll down to Parenting Time resources). Similar agencies exist nationwide.