What is a No Contact Agreement?
No Contact Agreements are contracts between two parties who otherwise have a legal obligation to comply with a "no contact" directive. The circumstances in which parties will enter into a no contact agreement will vary substantially. For example, one party tried to obtain an injunction in the Family Court and was unable to do so, while the other party has consented to an order or agreed to "no contact" as a remedy to protect that party. No contact agreements typically either define in great detail the acceptable and unacceptable level of contact or are broadly worded. Often the parties will be establishing the boundaries within the context of a family law dispute whether or not that dispute is about children or property .
Examples of circumstances where it may be desirable, or even necessary, for the parties to enter into a No Contact Agreement may include:
- Where there have been allegations of violence or serious threats of violence against another person
- A situation where the parties have chosen to separate and one party has agreed to leave the home on the basis they will have no contact with the other party pending litigation
- Where two parties with whom you have a close relationship, such as siblings, or parent with whom you have a child, are no longer able to manage their relationship without professional assistance and are at risk of involving the third party in their disputes unless a formal agreement is entered into.
Legal Implications of No Contact Agreements
There are many serious consequences for violating a no contact agreement. Of course, a no contact agreement is just that-an agreement. The tricky part comes when one party violates the agreement. It cannot only be a violation of the injunction, but it can open the door to sanctions by the court, including possible criminal charges. When creating a no contact agreement, at least in the eyes of the Court, the agreement is a written instruction from the court to the person who is accused of the inappropriate or violent behavior. Often, they are violations of statute. For example, in the case of domestic violence, it may be a violation of a criminal code section. Perhaps it is harassment or stalking. Sometimes the no contact agreement also contains limitations that are not a statutory crime, and invite the court to become the arbiter of what the parties are agreeing to do or not do. The court takes the orders it issues very seriously, and violations of such orders can carry a heavy penalty in terms of sanctions, which may include the temporary or permanent inability to see the children, fines, and in some cases, jail for violation of a probation order. Any party who violates their court ordered no contact agreement would likely find themselves back in court shortly after being accused of a violation. The judge is likely to set a hearing to determine if the violator did commit the wrong in violation of the court order(s). The judge will usually ask for testimony from each party. The judge will additionally listen to testimony from witnesses or any other appropriate evidence requested by either party. At the end of the hearing, it will be up to the judge to determine whether or not a violation occurred and what type of sanction will be put in place. No contact agreements raises numerous concerns. For the most part, you can be fairly assured that there will be quite a bit of controversy based on both sides having their opinions that the other party is in violation of the agreement. Because of this, parties with a no contact agreement should follow it closely to avoid future court hearings.
Drafting a No Contact Agreement
If the dispute is between two parties that are not family members, it is relatively simple to create a No Contact Agreement between the parties that sets out the exact terms (either in writing or verbally) of the restrictions or conditions imposed on the alleged aggressor. On consent, the specific terms of the No Contact Agreement will set out the restrictions or conditions that will apply, for instance, to what places the alleged aggressor should stay away from and when they should refrain from attending. It is advisable to specify the location of the exclusions so that the alleged aggressor cannot argue that they have not breached the No Contact Agreement if they simply visit a location a few blocks away. The time or period for which the restrictions will apply should also be left open for negotiation. The terms of the No Contact Agreement can also prevent the alleged aggressor from sending any types of correspondence to the complainant (including electronic correspondence). A No Contact Agreement can also contain a provision to prevent the alleged aggressor from contacting family members – this is important especially where there has been an incident where the complainant and alleged aggressor do not wish to have direct contact but, nevertheless, one of the parties in the relationship may have a close connection to a family member in common. Through a No Contact Agreement, the complainant can prevent any attempts at indirect contact through another family member. An example of a typical clause: The Respondent understands that (Name) has made serious allegations against him/her, and therefore (he/she) agrees to refrain from the following and will not: Live in same residence as (name) Socially or recreationally engage with (name) At their home or at any address they are residing Work together, now or in the future Engage with him/her or cause any third party to engage with (name) Be within 500 meters, now or in the future Entering onto their property, now or in the future.
Advantages and Disadvantages of No Contact Agreements
No Contact agreements provide important opportunities for safety and accountability between individuals in high conflict situations. Sometimes referred to as "Peace Bonds" in Canada, or Peace and Restraining Orders in the United States, these agreements are typically the result of a Court process. The Supreme Court of California has described Peace Bond or No Contact Agreements as "akin to the protective order remedy designed to protect victims of domestic violence." (See Cates v. Los Angeles (1992) 2 Cal.4th 986 [where court-approved no-contact agreements were deemed equivalent to protective orders for purposes of domestic violence statutes). California law recognizes the "benefit" that a no contact order or "peace bond" may provide for the "protection against further incidents of harassment."
Parties often benefit from No Contact Agreements at times when they have experienced violence from another party to the Agreement, including when the potential for future violence could be decreased through the use of such an agreement or when the parties to the Agreement enjoy some level of ongoing relationship that requires communication, but the history of incidents demands that they agree to strict boundaries regarding future contact. No Contact Agreements can increase accountability for all parties to previous incidents of violence by either providing actual prohibitions on conduct, or in the case of informal agreements, actual (although difficult to enforce) rules about conduct.
The damage caused by the conduct of the parties to the Agreement, and the potential for future incidents that could result from such conduct, are often a motivator towards using a No Contact Agreement. However, there are limits to the construction of No Contact Agreements. First, these Agreements can often be interpreted so broadly as to infringe on the rights of the parties to the Agreement to engage in protected speech and conduct, including communicating for purposes that further an existing business, academic, parenting or personal relationship. Although parties to No Contact Agreements are often forbidden to speak to one another (directly or indirectly), the reality is that many of these Agreements are not well written. A poorly written No Contact Agreements can cause confusion for the parties to the Agreement, and this confusion will often lead to unintentional violations. In turn, these violations can be used by one of the parties to the Agreement against the other, in academic, business or legal contexts, without providing for adequate opportunity to explain the context of the violation. In the most serious of situations, poorly written No Contracts Agreements are directly responsible for further acts of violence. In some cases, this next level of violence becomes possible because the parties to the Agreement do not have access to legal counsel that were involved in the drafting of the Agreement, and therefore will not have the skills, time and understanding necessary to ensure that later interpretations of the Agreement reflect the true intent of the parties to the Agreement. As such, clear drafting becomes essential to the development of No Contact Agreements. Another potential limitation of No Contact Agreements arises out of situations where one party cannot accurately represent to the other party the true nature of its contents. In particular, when there is no formal or informal legal basis to use the Agreement to exclude one party from certain conduct, such as by providing that an individual will be excluded from the academic environment, this limitation means that sometimes No Contact Agreements cannot be used in ways that are truly effective at taking individuals away from their original environment.
Enforcing a No Contact Agreement
Once a no contact agreement is made, it is important, especially for the victim, to know how to enforce the order. A victim can call police and/or law enforcement of the area of the alleged perpetrator to enable law enforcement to learn about the situation in the event the harassment reoccurs. A victim can ask that law enforcement monitor the situation or invite law enforcement to take a more involved approach if the situation escalates. It may depend on whether the police feel harassment is occurring . They also may have the right to enforce order provision of any acceptable order. If it appears, based on the situation you are in or have ended, that the no contact agreement will be violated, you can file with the state civil court. Also, if there was evidence of cyber-stalking or inappropriate contact before a no contact agreement, you have a right to go to the state or federal prosecutor and assert your rights as a victim of such a crime.
When to Consult a Lawyer
Given the legal implications associated with the formation and enforcement of no contact agreements, both employees and non-compete employers should consult an experienced business lawyer when confronted with a situation involving a no contact agreement. We recommend that companies who utilize no contact agreements seek legal advice to determine whether such agreements are an appropriate step in protecting business interests. Companies should also confer with an attorney if confronted by an employee who presents a no contact agreement, in order to ensure that the agreement is valid and enforceable. Employees and job applicants should be sure to discuss with an attorney issues pertaining to a no contact agreement before signing and also when asked to abide by the terms of a signed no contact agreement. Consulting an experienced business attorney protects both the employee and the employer from entering into agreement that is either unnecessary or poorly drafted.
Examples and Case Studies
Here are some real-world examples of no contact agreements and cases demonstrating their enforcement. In an unreported 2011 family law case, the husband had advised the wife in the court proceeding signed by the judge that he wanted no contact with the children after his early innocuous requests of her did not yield a response. The court’s signed order then stating that the father’s request for no contact with the children would be in effect was found by the appeals court as binding on the parties, enforceable by the trial court, but was subsequently reversed because the father’s no contact clause was adjudged to be unreasonable. In properly drafted and justly executed no contact clauses, an extermination of contact may well be reasonable.
In another case, since the husband’s incarceration for ten years due to theft had been related to a forged signature of the mother on a sales document of a home in order to fund the husband’s drug habit and the husband bore no true emotional attachment to diminished contact with the children who did not know him, the appeals court unanimously upheld the trial court’s imposement of no contact between the father and the children.
The Indian Child Welfare Act (ICWA) , a federal statute, can override the policy of "[a]lmost any desire by a parent to have no contact with a child" and thwart the attempt to completely eliminate contact or visitation with a child if the child has been permanently removed from the tribal community or is those circumstances where the state plans to apply for parental termination to adopt the child with a non-family member. If the Indian Child Welfare Agency had substantial evidence to show that no provision for custody and control of the child with either parent would be appropriate, the adoptive parents could be justified in their endeavor to obtain no contact with the mother.
Parental sexual abuse cases with evidentiary support showing that the risk of future molestation by the parent is high is a basis for a no contact order. While in these instances where statutory evidentiary presumptions of parental unfitness exist to support no contact, when no statutory presumptions of parental unfitness exist, it merits questioning whether the deprivation of fundamental rights to contact is constitutional under Due Process and Equal Protection grounds.