Understanding Contempt of Court in Family Law
The word “contempt” is used to describe the situation when an individual has intentionally disobeyed a court order. In family law, a finding of contempt is a way for the Court to enforce child support, spousal support, custody and visitation orders that a party has violated.
What are some common examples of contempt in family law cases?
Either a person’s action or inaction can lead to him/her being in contempt. Some common examples of being in contempt of court that typically occur during or after divorce proceedings include:
• Violating a restraining order
• Not paying child support that that has been ordered
• Not paying spousal support that that has been ordered
• Refusing to allow the other parent visitation as ordered in the parenting plan
• Failure to return the child to the other parent at the end of the visitation period
How to prove contempt in Family Court?
In order to prove to the Court that the other party is in contempt, you must prove four elements. First, you must show that there is a valid, written court order signed by the judge that is in effect. For instance, the order may be one drafted by the judge in a hearing prior to dissolution or an order pursuant to the parties Marital Settlement Agreement. Second, you must prove that the other person knew about the court order. You can prove this by showing that the other party was present in court when the order was given, that the other party was served with the order and a proof of service or show that the other party has obeyed the court order for some time and then suddenly stops. Third, you must show that the other party had an ability to comply with the order. However, it is important to note that this element does not apply to child support cases. And last, you must prove that the other party willfully failed to comply with the order (no need to prove that the violation was willful in child support cases).
What can the Court do if it finds a person in contempt?
The purpose of filing an action of contempt against the other party is to get the party to follow the court order in the future. Thus, if a Court finds that a party is in contempt then there are several remedies depending on the violation. Under California Code of Civil Procedure Section 1218, remedies include community service, imprisonment and fines.
Are there alternatives to filing a motion with the court regarding contempt?
Yes, there are several alternatives to filing a contempt action with the court. For instance, rather than running to the courthouse steps, it might be worth it to try a form of alternative dispute resolution, such as mediation, with your ex-spouse. This might help to reduce costs and resolve your issue quicker. Another option is to have your attorney write a demand letter to your ex-spouse outlining how he or she is in contempt of a court order and request prompt action on his/her part to correct the violation(s). A third option is to pursue a collection action if there has been a violation of an order to pay support. Collection actions include wage assignment, foreclosure or garnishment.
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding contempt. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.