Regarding: Explanation of Orders to Show Cause

Dear XXXX,

This is a short form letter explaining Orders to Show Cause (OSC) and how they are prosecuted and defended. Since this is a form letter, it is a general explanation of the process and not specific to your case. If you would like greater explanation regarding the Order to Show Cause in your case, please, feel free to call us and ask any questions you may have. We will be happy to speak with you.

OSCs are how court Orders are enforced in civil matters. They begin with an allegation that someone has defied an Order. That allegation is made in the form of a Motion for an Order to Show Cause (MOSC), which is filed with the Court and given to the person who allegedly defied the Order. For someone to be held in contempt, it must be proven by clear and convincing evidence the person accused:

  1. knew what was required under the Order,
  2. had the ability to comply with the Order, and
  3. willfully and knowingly failed or refused to comply with the Order.

The accused has the initial opportunity to respond to the MOSC in writing, producing documentary evidence and affidavits, and explain why he or she is not in contempt.

If the district in which the OSC is filed has commissioners, then a hearing on the MOSC will be held in front of a commissioner. This is a preliminary hearing meant to determine if the person making allegations of contempt can prove a prima facie case for contempt. What this really means is that if the person making allegations can produce believable evidence of contempt (whether through documents or by affidavits or testimony), then the matter will likely be sent to a judge to hear the matter more fully. A good example of this is a situation in which a person accuses another of withholding parent-time. If the accuser provides no documents, but states in court the other person withheld parent-time, and the accused states he or she did not such thing, then the matter is likely to be sent to a judge for a more in depth hearing.

During this initial hearing, live testimony under oath is usually not taken. Instead, people talk to the commissioner and tell them their side of the story. There is no cross-examination of witnesses done at this time. (Now, some commissioners may require live testimony for some things, but not very often.)

If the commissioner determines the person making allegations has provided insufficient evidence to prove even a prima facie case of contempt, then the commissioner will not send the matter to a judge for further hearing.

Please, do not think if a matter is sent to the judge that you have lost or won. It is fairly easy to have a matter sent to a judge for a more in depth hearing, and it happens in the majority of cases. It is at this more in depth hearing where live testimony is taken from witnesses, cross examination is conducted, and opening and closing statements are made. It is, in a sense, a mini-trial regarding contempt.

If the judge finds someone in contempt, they can make that person pay attorney fees, other costs or reimbursements, provide make-up parent-time, and/or possibly serve jail time (jail time is not a normal thing, to be honest). If the judge finds there was no contempt, then the matter is dismissed.

Hopefully, this letter has helped explain the OSC process. Again, if you have any questions regarding your case, please call 801-685-9999.

/s/ Marco Brown

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