In my opinion, family lawyers in Rhode Island need to do two things for the benefit of their clients.
First, a good family lawyer needs to distinguish between technical contempt and willful contempt. The two are fairly easily to distinguish.
Willful contempt occurs when admissible evidence can be proven before the family court judge demonstrating that a party knew of a court order and despite the ability to comply with that order chose not to do so or opted to do something that the party felt was in his or her own best interests or the best interests of his or her family despite an order to the contrary.
Technical contempt occurs when the evidence presented to the court proves that a party subject to an order of the court does not comply with that order because he or she does not have the means or the power to comply with the courts order.
It is the nature of the non-compliance that designates what type of contempt it is. Does the person have the ability to comply with the Order or not? If the person has the ability to comply with the Family Court Order but does not do so then the contempt is likely to be found to be willful. If the person accused of the contempt did not have the ability to comply with the order as a result of circumstances outside his or her control then the Order should normally be one of technical contempt.
The distinction is more than nominal. The distinction is often very significant as is the manner in which your Rhode Island Attorney deals with it. In most cases, clients will not know, understand or appreciate the distinction between these types of contempt and how they may be viewed by the court.;
In cases of willful contempt, the court is more likely to award attorneys' fees to the prevailing party if in the court's discretion such an award is warranted. In cases of technical contempt, awards of attorneys' fees are rare. In some instances if it appears clear to the judge that the party pressing the contempt motion was aware it was a technical contempt, the judge may be upset with counsel for wasting the court's time or may be upset with the attorney's client if it becomes clear from the evidence presented that the party pressed this motion knowing it was merely a technical violation and did not create a risk of harm that the Order was designed to protect.
In most cases I believe it appropriate to identify for the client the pros and the cons of proceeding with a motion for contempt when it may be seen by the court as purely technical. Insistent clients who try to force their counsel to proceed on a matter that may damage the client's credibility with the court and perhaps damage their attorney's reputation for the remainder of the case are best read the riot act and the consequences clearly explained to them. An outright refusal of an attorney to proceed under such circumstances is understandable and justified, though many attorneys will not do so for risk of losing the client's business.
In the end, despite the good judgment of counsel, sometimes clients need to give direction to their counsel, have their day in court, and take their lumps before they catch on to the fact that their attorney may know best what to do in a particular situation as a result of his or her experience and expertise.
Christopher A. Pearsall
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