After someone acquires a court order regarding a family matter in California, he or she may believe that the case is finished. However, this is often not the case. It is common that court orders are not followed. They may also have to be changed to account for new circumstances.
Contempt of Court
A common way to enforce a court order is to have a contempt of court proceeding in which the parent who is not following the order is made to answer to the court regarding this non-compliance. In contempt actions, the petitioning party requests the court to enforce the court order and to make a finding that the other parent willfully disobeyed the court order. This type of proceeding usually consists of the two parties appearing with or without legal counsel along with any witnesses to the alleged acts. Evidence may also be presented to indicate how the party disobeyed the court order. The petitioning party files an Affidavit for Contempt and an Order to Show Cause.
In order to successfully prevail in a contempt of court action, the petitioning party must prove the following:
- The existence of a valid court order
- The defendant is aware of the court order
- The defendant willfully violated the court order
Because being found guilty of contempt of court carries with it potential criminal penalties. Therefore, the defendant is entitled to certain rights, including:
- Right to notification of the charges against him or her
- Right to a hearing on the matter
- Right to counsel
Types of Actions that Can Result in Contempt of Court
A variety of actions or failure to take action can result in contempt of court. In most cases, there is a two-year statute of limitations to bring forth an action based on contempt of court.
Failure to Pay Child Support
A parent can bring forth a contempt of court action if the other parent was ordered to pay support and has failed to do so. Such an action can be initiated even if partial payments have been made or payments were late. There is a three-year statute of limitations to bring forth a contempt of court case based on a willful violation to pay support.
Failure to Pay Spousal Support
A contempt action can similarly be made if a spouse fails to pay spousal support. Like with child support, the action can be brought if partial payments or late payments were made.
Failure to Pay Attorney’s Fees
Another reason why a contempt action may be brought is if the party was ordered to pay attorneys’ fees or court costs and has failed to do so.
Violating Child Custody or Visitation Orders
Failing to follow the parenting schedule, refusing to return the child at the appointed time or failing to follow other instructions included in orders regarding child custody or visitation orders can lead to contempt of court charges.
Failure to Follow the Court’s Order
The court may make a number of other orders and if a party under its jurisdiction refuses to follow the order, a contempt action may be brought. For example, in child support cases, the court may order a parent to seek work. If he or she does not try to find a job, he or she may be held in contempt of court. In order of protection cases, contempt can be filed when a person violates an order not to cause harm to him or her or not to have contact with him or her. If a spouse is ordered to pay a certain debt as part of the divorce decree, he or she can face contempt charges for failing to follow this instructive.
Financial instructions that are not followed are also fertile grounds for contempt actions. For example, failing to sell property as ordered by the court, failing to provide financial disclosures as required by the court or failing to dispose of property as otherwise instructed by the court can result in contempt charges.
Third Party Claims
A party may have a claim against a third party. For example, an automatic income withholding order may be placed in order to garnish a party’s wages to pay child support. If an employer refuses to follow the court order requiring it to hold back the support obligation, the employer may face contempt proceedings.
Penalties for Contempt of Court
If the court finds that the party is in contempt of court, the defendant may face serious consequences, such as having to give up time that he or she took from the other parent, monetary penalties, an unwanted change in custody or visitation or another punishment that the court considers appropriate. The party may be required to pay the petitioning party’s attorney’s fees and costs.
For a first finding of contempt, the court can order up to $1,000 in a fine. He or she can also be placed in jail for up to five days. If there is a second contempt finding, the punishment can result in imprisonment of up to 120 hours for each act of contempt and 120 hours of community service. The time and community service doubles for third or subsequent contempt of court findings.
Criminalization of Not Obeying the Court Order
In some situations, not obeying a court order may be a criminal act beyond contempt of court, such as when a parent refuses to return a child as required by the court order. In these situations, help from law enforcement may be necessary. The other parent may wish to contact law enforcement. He or she may contact the district attorney for help. The Child Abduction and Recovery Unit may be assigned to the case if the
There are often proactive ways to prevent these problems from occurring. For example, getting a clear court order about the details involved in visitation, custody or support matters is critical. In some cases, it may be preferable to go through mediation and have an agreement drawn up that reflects the wishes of the parties rather than relying on a standard court order. Court orders and orders that come from an agreement between the party should provide specifics regarding holidays, birthdays, vacations, summer visitation and other matters so that they can be enforced.
It is also important to keep a copy of the signed court order in a safe place. If other individuals will be involved with the pick up or drop off or other aspect of the situation, they should also have a copy of the court order. If significant changes are made to this order by an agreement between the parties, this new agreement should be brought before the court in a joint motion to modify the custody agreement.
Modification of Court Orders
While a court order is in place, it must be followed or the defendant may face the serious penalties associated with enforcement actions. However, family court orders are generally modifiable. The court can take changed circumstances into consideration to determine whether or not to alter an existing court order.
Reasons to Change a Family Court Order
There are a number of reasons why one or both parties may wish to change a court order, such as:
- Both parties agree to change the parenting time
- A party plans to move to another state
- The income of one or both parties changes
- The child’s needs change as he or she gets older
Before a court will order a change, the parties must either agree to the change or one of the parties must show that there has been a change in circumstances since the existing order was made.
Requesting a Modification
To modify an existing court order, the petitioning party must complete specific forms and file these at the courthouse that has jurisdiction of the case where the original order was filed. The court assigns a mediation date for the parties to try to work out the change without the imposition of an order by the court. The court clerk assigns a court date for the parties. The other parent must be properly served with the paperwork so that he or she is made aware of the court date and so that he or she has an opportunity to respond. At the court hearing, the parties can testify, bring witnesses to support their version of events and present evidence. At the conclusion of the hearing, the judge makes a decision and this information is preserved on a new court order.
A family law lawyer can assist with all aspects related to the enforcement or modification of family court orders.