In California, you can file for California contempt of a court order in a divorce case or family law matter to enforce an existing order when a party refused to comply with an enforceable California family law court order. California contempt proceedings are often brought for violations of orders involving child custody, child support, spousal support, division of community property, and equalization or reimbursement payments.
California Contempt – Civil and Criminal
California contempt petitions are quasi-criminal in nature which requires the charging party to meet the criminal burden of proof, beyond a reasonable doubt. To prove contempt, a party must:
- A violation of a valid court order. Orders that are vague or not clear are may be difficult to enforce.
- The accused party must have knowledge of the court order. In most situations, the accused has been personally served with a copy of the court order or was present in court when the judge signed the court order.
- The accused party must have willfully violated the court order.
California Statute of Limitations for Filing
If the contempt of court proceeding is for a willful violation to pay either child or spousal support, the California contempt proceeding must be commenced no later than three years from the date that the payment was due. However, since support payments are typically a monthly obligation, each nonpayment of support for a particular month is a separate count of contempt and therefore separately enforceable. Any other contempt proceeding that does not arise out of a support obligation must be commenced within two years from the time that the contempt is alleged to have occurred.
Charging Party’s Due Process Rights
The accused party has the same Constitutional protections that exist in a California criminal law court, which are:
- The accused party has the right to be formally notified of the charges which occurs when the accused is personally served with a Request For Order and Charging Affidavit.
- The accused party has a right to counsel. If the accused party cannot afford an attoney, one will appointed.
- The accused party has a right to a hearing on the matter and the right to testify. This includes the right not to testify should the accused party wish to avoid self-incrimination.
- The accused party has the right to call and cross-examine witnesses.
- The accused party has the right to request a discharge if the charging party cannot meet the burden of proof with admissible evidence.
- Under California law, the accused party is not entitled to a jury trial if the maximum sentence is five days in jail and/or fine of $1,000.00.
California Contempt for California Support Orders
California child support orders are enforceable through a contempt proceeding. This includes both temporary spousal support, permanent spousal support, and child support. A party can file a California contempt proceeding when the accused party has made a payment, only makes a partial payment, or pays late on a support order.
California Contempt for Attorney Fees
Failure to pay attorneys fees in a California family law case can be the basis for a filing of contempt. However, the attorney fees must be awarded be “need based,” which means that the award was fair and equitable.
California Contempt for Failure to Seek Work
A party’s failure to willful fail to follow it can subject the spouse to contempt of court proceedings. Should one spouse fail to follow a California court order to seek work or training for that spouse’s mutual obligation to support the children, the non-working spouse may be charged with contempt.
California Contempt for Employer’s Failure to Withhold Payments
A California wage garnishments is often used to ensure timely payment for California support. A spouse’s employer who willfully fails to comply with a wage garnishment order that relates to the payment of support is subject to a contempt proceeding. If the spouse’s employer violated the wage garnishment and the employee had no control over that situation, then the employee may not be the subject of a contempt proceeding.
California Contempt for Violation of Domestic Violence Restraining Order
This should be obvious but a willful violation of a restraining order, for example a “no contact order” that resulted from a domestic violence application, is punishable by contempt.
California Contempt for Nonpayment of Debts
A California divorce and family law order or judgment cannot be enforced by contempt if it relates to the payment of a debt but what is and is not a debt is not what a layperson may consider the term to mean. For example, child support as well as spousal or family support orders are not considered debts but rather a support obligation even though the payment of money is involved by one spouse to the other.
However, if the court order requires a husband or wife to make a specific payment to satisfy a community liability or obligation, such as a house or car payment, such an order may not be enforceable by contempt unless the spouse who is pursuing the contempt of court can show that it is an integral part of a support order. This is a factually rich area and what was “intended” can be the subject of great dispute. California courts and case law have gone both ways on this issue depending on the individual facts of the case.
California Contempt for California Child Custody and Visitation Orders
Custody and visitation orders are possibly the most violated and least enforced orders in contempt proceedings. It is far too common for a parent to violate the other parent’s joint legal custody rights and willfully fail to adhere to the parenting schedule set forth by the court order.
In situations where one parent violates legal or physical custody rights or otherwise fails to follow the parenting plan that was ordered by the court, the victimized parent may proceed with a contempt action. It is recommended that before proceeding, the other parent’s willful violation be documented through text message, email or other form. Giving a parent the chance to correct his or her misconduct before proceeding with contempt sometimes make the likelihood of that parent being held in contempt more likely. That is because feigning a lack of knowledge or other ignorance of the court order may be a hard sell to the judge if that parent has been put on secondary notice of the order and told that they are violating it.
What about situations where the child simply refuses to go with the other parent? This is a common scenario in California child custody cases especially when teenagers are involved. There are a variety of reasons for it including but not limited to parental alienation or undue influence of the child.
The general rule is that a custodial parent who has control over the child and the ability to make the child available for visitation may be held in contempt of a visitation order. However, what exactly is control and ability? Anybody who has had teenagers knows that making a teenager do anything is not an easy task. Much depends on the age of the child in such factually specific circumstances. A five or a six year old child, for example, is vastly different than a 14-year-old.
California Contempt for Failure to Pay Equalization Payment
Equalization payments are common in California divorce judgments and result from property divisions. For example, if one spouse received the greater of the committee property assets, that spouse would likely be ordered to make a cash or other equalization payment to the other spouse to equalize the division of the community. Such orders are enforceable by contempt if the obligor spouse fails to make the payment or makes it late.
California Contempt for Division of Community Property
If a court order or judgment requires one spouse to give the other spouse property, which is typically a piece of personal property, or the order requires one spouse to make an affirmative act to effectuate a transfer of property, a willful violation of such an order can be punished by a contempt of court proceedings.
Contempt of court for failure to comply with mandatory declaration of disclosure orders
The California Family Code specifically lays out procedure for the service of both a preliminary and a final declaration of disclosure during a divorce proceeding. Pursuant to Family Code Section 2107, the spouse who has been ordered to comply with his or her disclosure requirements and willfully fails to do so can be held in contempt. Contempt is one of the few remedies that are available in such a situation which also include monetary sanctions against a spouse as well as evidentiary or issue sanctions.
Punishment for Contempt
California Code of Civil Procedure Section 1218(c) state that for each act of contempt, the convicted spouse or parent shall be fined up to $1000 and or imprisoned for up to five days. Notice that this is for each act of contempt. In support proceedings, each monthly payment is a separate act. The court also has the power to order community service.
The punishment in family law proceedings is mandatory. On a first offense, the spouse or parent convicted of contempt must be ordered to perform community service for up to 120 hours or be imprisoned for 120 hours, which amounts to five days, for each count of contempt. Therefore, for example, if there was a failure to pay child support for 10 months, that is 10 separate counts or 50 days in jail.
If there is a second contempt finding, the rules become more severe, the punishment now becomes 120 hours of community service and imprisonment for up to 120 hours, for each act of contempt.
For a third and any further contempt findings, the convicted spouse or parent must be imprisoned for up to 240 hours (which amounts to 10 days) and ordered to perform up to 240 hours of community service, for each count of contempt.
The court must take into account a spouse or parent’s employment schedule when ordering community service or jail. After all, how is a person found to have violated a court order, especially a support order, supposed to make support payments if your she loses his or her job?
The court is not mandated to award attorneys fees in California contempt of court proceedings. It is a discretionary function of the court.
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