Do you know what is contempt of court in California family law, and what constitutes a violation?
Contempt proceedings in Family law are criminal in nature, at all stages, making contempt charges serious and damaging.
Though introduced to ensure the strict enforcement of court orders and implement the power of courts to conduct the regular business of the court, being charged with contempt makes you vulnerable to penalties.
If you are initiating divorce proceedings, it is important to get legal counsel to ensure that you are not held liable for contempt at any stage. Also, knowing the grounds of violation helps you plan your case and course of action accordingly.
Read on to learn about contempt proceedings, grounds of violation, due process of contempt proceedings, penalties, modifying court order and the need for legal counsel.
What is contempt of court?
Contempt of court is the willful non-compliance or disobedience of court order, decree, direction or ruling.
Contempt charges can be filed against any action in or out of court that tends to impede, obstruct or disobey the court orders thus preventing the court from discharging its duties.
Since contempt proceedings are criminal in family law, the contemnor faces criminal proceedings and also enjoys some rights of a criminal defendant.
If you are a divorced parent ordered to provide child support, willful non-compliance i.e. not paying the child support money despite having the means, makes you culpable of contempt. Your former spouse is legally allowed to begin contempt proceedings against you.
If you are a divorced parent enjoying custody of your child and your former spouse has been granted visitation rights, it is illegal to stop them. Preventing your former partner from visiting the child in contravention of court orders is a direct contempt of the court.
Contempt proceedings can result in severe penalties commensurate with the nature of the offense. It can differ from case-to-case based on the discretion of the judges overseeing the cases.
Prima Facie Elements of Contempt
The Code of Civil Procedure §1209 lists down the legal standard for prima facie grounds of contempt in family law.
- Court Order : A clear, written court order must have been issued with directions, all entered into the court’s minutes. Oral orders are usually not enforceable as they are subject to misinterpretation and not necessarily reflect the unequivocal decision of the court. Any ambiguous provision is usually ruled in the favor of the contemnor.
- Knowledge of the contemnor: The contemnor or the accused must be aware of the order/directions of the court. The contemnor must have been present at the court when the orders were issued or must be served a copy of the order personally.
- Wilful disobedience: The contemnor should have willfully disobeyed the court order despite having the ability or means to adhere to it. E.g. Non-payment of child support despite possessing paying capacity.
- Ability of the contemnor to obey it: The contemnor must have the ability to obey the court ruling. For e.g. When asked to provide child support, the money must be commensurate with his paying capacity at the moment. The ability to pay is also measured by the intent to pay. If the accused is paying all other bills except the child support, it shows the lack of intent and contemptuous behavior.
Types of contempt
Though contempt of court can be usually civil or criminal in nature, contempt of court in family law is criminal at all stages. It is important to know the grounds of violation that constitute a court contempt to avoid legal repercussions.
The commonly reported violations of court orders are:
Non-payment/Late payments of child support
When the noncustodial parent refuses to pay child support or is repeatedly defaulting on the monthly child support payments, they are liable to contempt of the court. Each month of non-payment constitutes one act of contempt and each act has individual penalty.
Refusal to pay spousal support
Similar to child support, former spouses are sometimes ordered to provide spousal support. Earlier called alimony, spousal support is a legal obligation to provide financial support to your erstwhile partner.
Non-adherence to child visitation agreements
A court order will provide a clear schedule of visitation hours when a noncustodial parent can visit their child. Prolonging the time or visiting them outside the stipulated time amounts to contempt of the court.
Breaking child-custody rules
Child custody arrangements will be clearly demarcated in the court order. Breaking the rules is a serious violation of the court order.
E.g. Picking up the child from school outside visitation hours or trying to move the child from the house of the custodial parent
The custodial parent can file a contempt petition which could result in restraining order among other penalties.
Improper division of community assets
California is a community state. This means that after marriage, all properties acquired and income earned is community property.
After divorce, all the income and assets earned before marriage belongs to the respective partners. But those earned after the marriage until the date of separation, will be split equally between both the partners.
The community property includes properties purchased, bank savings, 401(k), retirement savings, down-payments, mortgages and even debts acquired.
One spouse can try to take a larger share of the property or can refuse to part with 50% of the income earned during the marriage period. If so, they can be charged with contempt proceedings.
Non-disclosure of all assets can also constitute contempt of court orders.
Violating restraining orders
If the court has issued restraining orders against a spouse, violating them is a direct contempt of the court.
They can be restrained from contacting the spouse or the children.
This is especially common when they are accused of abusive behavior, domestic violence or a repeated violator of court orders.
Failure to seek work order
The noncustodial parent has to ensure that child support payments are promptly sent every month.
This requires them to have a stable job with steady income. If the accused is unemployed and refuses to seek employment, they can be held in contempt of court orders.
Failure to pay attorney fees/court fees
If one spouse refuses to pay the attorney fees or court fees of the other, it is contemptuous. It is however dependent on the discretion of the judge.
Penalties for Contempt of Court
The penalty of violating a court order could be severe due to the criminal nature of contempt cases.
It could be court ordered community service, incarceration or imprisonment and/or hefty fines. Sometimes the accuser could also demand that the contemnor pays their attorney fees and court fees.
The California Code of Conduct 1218(c) states that the contemnor faces charges of a fine up to $1000 and imprisonment of up to 5 days for each act of contempt.
An act of contempt can be non-payment of child support for a month. Non-payment for two months constitutes two acts of contempt which means double the penalty.
Repeated violations result in increased severity of penalty.
For e.g. Penalties for each act of contempt of the accused are listed below.
- First Offense : Up to 120 hours of community service or 120 hours of imprisonment
- Second Offense: Up to 120 hours of community service and 120 hours of imprisonment
- Third Offense: Up to 240 hours of community service and 240 hours of imprisonment
Rights of the contemnor
Since the nature of proceedings is criminal, the contemnor is eligible for certain rights like those of a criminal defendant.
These include:
Right to be informed of charges
The contenmor must be personally notified of the charges levied against them.
Right to counsel
The contemnor has the right to seek counsel to represent them in the contempt proceedings. If the defendant has no counsel, the court will appoint a counsel.
Right to a hearing
Owing to the serious nature of the crime, the contemnor has the right to testify and present their case. They can also abstain from testifying to avoid potential self-incrimination. The contemnor can also present witnesses and cross-examine any witnesses produced against them.
Right to be discharged if insufficient evidence produced
The burden of proof to prove contempt lies on the person initiating the contempt case. If they are unable to provide sufficient evidence that is admissible in court beyond reasonable doubt, the contemnor has the right to be discharged from the case.
Conditional right to trial by jury
Under California law, the right to trial by jury is not an unconditional right and the requirements are not fixed. Sometimes a mild penalty like a one doled out after the first offense can not get the right to trial by jury.
Changing a Family Court Order
A court order has to be followed else you could face contempt proceedings. But what if following the court order could potentially harm you or your child?
For example, the court may provide visitation rights to your former spouse, who may have been an abusive husband.
Courts believe that because a person is a bad spouse does not necessarily mean they are a bad parent as well.
Considering the welfare of the child, the law insists that a child should have access to both the parents. Exceptions are made only when doing so endangers the life and welfare of the child.
Unless you are able to provide strong evidence of your husband’s abusive behavior and potential danger to your child, visitation rights are the norm.
You may seek to challenge the order with relevant evidence but in the meantime, preventing him from visiting your child constitutes contempt of the court order.
Another example is when you are unable to pay child support because you lost your job. You can ask for a modified support order.
Modifying the court order can only be swift if agreed to by both the parties or if the judge is immediately convinced of your argument. Else, it can take a long time for resolution.
Approach your legal counsel for a rough estimate of the time to modify.
Why do I need a legal attorney?
Court procedures can be long, complicated and cumbersome. Enlisting the support and services of an expert legal counsel can help you defend a contempt charge or initiate contempt proceedings with success and ease.
Filing contempt proceedings does not necessarily warrant the services of a legal attorney.
You can do it yourself by downloading the Order to Show Cause and Affidavit of Contempt and attaching the relevant forms FL 411 or FL 412.
If you hire an attorney, they will fill the forms on your behalf and reduce the burden of paperwork. Also, as a person initiating contempt, you have to provide evidence as the burden of proof of contempt falls on you.
Without an attorney, you may be scrambling to find and gather evidence to support your application.
If facing a contempt charge, a legal attorney is highly advisable as we already discussed the criminal nature of the case. If you don’t hire an attorney, you will be assigned by the court.
You could also represent yourself,but that may be disastrous and self-incriminating. It is highly advised that you don’t represent yourself unless you have prior relevant experience.
A legal counsel will also help counteract the objections raised to any requests to change the court order.
Sometimes, filing a contempt petition is not the only solution. Mediation, writing a demand letter to your former spouse or pursuing collection action are all reasonable alternate course of action. Talking with your attorneys can help make an informed decision. We, at Heath Baker Law Office, believe that no parent reeling from a divorce should be subjected to further trauma of contempt proceedings by an inconsiderate, vindictive or irresponsible co-parent. With years of experience in dealing family law cases, our expert Riverside family law attorneys will help you secure child support or visitation rights with ease. Are you worried about filing for contempt or that you may be charged for contempt? Call us now for a free consultation.