Experienced Family Law Contempt Attorney
Law Firm Specializing in Contempt Actions Filed in the Inland Empire of Southern California
Contempt Proceedings in Family Court
A party subject to a valid family court order who, with knowledge of the order and the ability to comply, fails to comply with the terms of the order may be subject to a contempt adjudication and statutory penalties thereto (Cal Civ. Proc. Code § 1218 & 1219). Family court orders and judgments are enforceable by contempt unless punishment by contempt would violate the constitutional guarantee against imprisonment for nonpayment of “debt” (U.S. Const. Amend. XIII; Ca Const. Art. I § 10). However, an order or judgment is not a “debt” within the meaning of the constitutional protection simply because it requires the payment of money.
Contempt of court in California family law is generally a quasi-criminal proceeding
A party to a family court proceeding who takes it upon him or herself to bring a contempt action and hold the opposing party to answer, is acting as a “private prosecutor.” In California, the face mandatory Judicial Council form, Affidavit for Contempt, expressly states “A contempt proceeding is criminal in nature” and advises the citee that “the possible penalties include jail sentence.” As a result, constitutional guarantees afforded to defendants held to answer for charges in criminal court are likewise afforded to the citee in contempt proceedings in family court.
Initiating Contempt Proceedings – How to file for Contempt in Family Court
Contempt proceedings in family court are commenced by presenting a prescribed “charging affidavit” to the court (Cal Civ. Proc. Code § 1211(a)). Based on the affidavit (which recites the facts constituting the prima facie contempt), the court must then issue and sign an order to show cause directing the alleged ‘contemnor’ (the party allegedly in violation of the order or judgment) to appear and be heard on the charge at a specified date and time (Cal Civ. Proc. Code § 1212). In California family law cases, contempt proceedings must be initiated by filing and serving Judicial Council Form FL-410, Order to Show Cause and Affidavit for Contempt, along with an Affidavit of Facts Constituting Contempt (FL-411 or FL-412). These forms have been adopted for mandatory use by the Judicial Council, so contempt proceedings in family court cannot proceed without these forms and the requisite attachments.
Jurisdiction to adjudicate a contempt action exists only if the charging affidavit alleges specific facts showing a prima facie case of contempt (Cal Civ. Proc. Code § 1211(a)). However, a deficient charging affidavit can be amended at any stage of the proceeding (Cal Civ. Proc. Code § 1211.5(b)). If no objection is raised to the sufficiency of the charging affidavit, jurisdiction to adjudicate contempt may be established by facts proven at the time of the hearing on the contempt. Under such circumstances, the court must amend the affidavit to conform to the proof offered during the hearing (Cal Civ. Proc. Code § 1211.5(a)).
Elements of a Cause of Action for Contempt [prima facie] – What the petitioning party must prove to hold the other in Contempt
Valid Court Order: The charging affidavit must specify the order the citee allegedly violated. A contempt adjudication cannot stand if the underlying order is invalid. The court can presume validity unless the order is void on its face. Thus, the citee normally bears the burden of showing invalidity of the underlying order. Vague court orders that are not clear and specific are difficult to enforce in contempt proceedings (this is common with child custody and visitation order violations).
Knowledge of the Court Order: The charging affidavit must set forth facts showing that the citee was on notice or had knowledge of the underlying order (a jurisdictional prerequisite to a valid contempt adjudication). In most situations, the citee personally received a copy of the order or was present in court when the court order was made.
Willful Disobedience of the Court Order: The charging affidavit must allege specific facts showing the citee’s willful disobedience of the underlying order to complete a prima facie case of contempt. For example, with child support and spousal support orders or orders to pay attorneys fees, the citee may raise the defense that he or she does not have the present ability to comply with the court order. Depending on the specific factual situation, the ability to comply may or may not be a defense or an element that must be shown to prove contempt. This can become a complex factual dispute in contempt proceedings because the ability to comply is a question of fact in each case.
Statute of Limitations for violation of a California Family Law Court Order – Limits on when a Contempt can be filed
Contempt proceedings brought for noncompliance with a court order made pursuant to the California Family Code are subject to a statute of limitations of California Code of Civil Procedure Section 1218.5.
How long do parties have to bring a Contempt action for violation of support orders?
A contempt cause of action for alleged failure to pay support must be commenced within 3 years from the date the payment was due (Cal Civ. Proc. Code § 1218.5(b)). Contempt allegations must be broken down into separate “counts” for each month payment was not made in full. Each month within the 3-year statutory period for which payments were in default is punishable as a separate count of contempt (Cal Civ. Proc. Code § 1218.5(a)).
How long do parties have to bring a Contempt action for violation of any other family law court orders?
A contempt cause of action for alleged failure to comply with any other order made under the Family Code, including child custody and visitation orders, restraining orders, property division orders, attorney fee orders, etc., must be brought within 2 years “from the time that the alleged contempt occurred” (Cal Civ. Proc. Code § 1218.5(b)).
Responding to an Order to Show Cause re Contempt – Common Contempt Defenses
Before the hearing on the OSC re Contempt, the citee may file an opposing affidavit answering the charge, admitting or denying it, or may move for a discharge/demurrer without answering (Cal Civ. Proc. Code §2015.5). The opposing affidavit is a declaration made under penalty of perjury, questioning the adequacy of the moving party’s charging affidavit and/or raising a sufficient excuse or justification in defense of the charge.
The difference between an affirmative defense to contempt charges and questioning the adequacy of the charging affidavit is sometimes unclear, even to seasoned attorneys. For example, contempt charges are commonly defended on the ground that any failure to comply with the underlying order was not “wilful” because the citee lacked the ability to comply or for whatever other reason did not wilfully violate the court order. Wilful disobedience is one of the elements of contempt the moving party must prove beyond a reasonable doubt, but it may also be an affirmative defense to the contempt charges depending on the allegations.
When the inability to comply is set forth as an affirmative defense, the citee does not meet his/her burden of persuasion with conclusory declarations; he/she must set forth evidence showing complete performance was impossible. Further, disobedience of a valid court order is not excused by the assertion that the citee was acting on advice or instruction of counsel. In fact, attorneys who encourage or instruct such defiance can be held in contempt themselves for their own recalcitrant conduct, and may even face discipline from the California State Bar.
Motion For Discharge, Demurrer, Motion for Dismissal of an Order to Show Cause re Contempt
In lieu of an answer, the citee can move for a discharge of the contempt citation, dismissal of the action, or demurrer on the following grounds:
- The charging affidavit fails to allege facts sufficient to make out a prima facie case of contempt.
- The same charge was previously made on the same facts and the allegation was previously discharged on the merits.
- The order expired before the alleged violation date.
What to expect at a Contempt Hearing in California family court
Either the cited (or his or her attorney) must appear at the hearing on the OSC re Contempt. The court may proceed in the absence of the alleged contemnor or his or her attorney, if it finds the OSC re Contempt and Affidavit for Contempt forms were properly served and the failure to appear was voluntary (Cal Civ. Proc. Code § 1217). At the hearing, the moving party must present admissible evidence sufficient to prove the elements of the alleged contempt, beyond a reasonable doubt. However, the charging and opposing affidavits are hearsay and thus inadmissible over objection (Cal Evid. Code § 1200(a), (b)).
Riverside Contempt Attorneys Combining Knowledge & Skill With Compassion & Dedication
Our experience inside and outside of the courtroom allows us to consistently deliver exceptional results for the litigants we represent. Our Riverside contempt attorneys are interested in finding tailored solutions to each litigant’s problems, using the facts and investigative tactics necessary to produce real-time solutions for our clients.
Our skilled attorneys will advise you every step of the way, so this contentious and frustrating process becomes less challenging and more palatable from beginning to end.
If you anticipate a contempt proceeding is (or should be) imminent in your life, it is important to know that a Riverside contempt attorney can help you understand the process, so you can temper your anxiety about what’s to come. We can help get you there faster, so you can get your life back on track.
Contact Our Experienced Riverside, California Contempt Attorney Now
Litigants can rely on the experience of our Riverside contempt attorneys in filing, prosecuting, and defending contempt actions. Our Southern California family law firm fights hard to make the legal system work for our clients. Contact our accomplished and dedicated Riverside contempt lawyers today by calling 951-888-3300 to learn how our experienced contempt attorney, Colleen Sparks, can guide you through the court process in a prompt and clear manner.
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