As a result of the quasi-criminal nature of contempt proceedings in California family court, the rights and privileges afforded to defendants held to answer for charges in criminal court pursuant to the U.S. Consitution are likewise afforded to the citee in contempt proceedings in family court.
What Rights is a Citee in a Contempt Action Entitled to?
Notice of the Contempt
The citee must be put on formal notice of the charge(s) and of the time and place for the court hearing on the charge. This includes a formal reading of the charges, although this is regularly waived by the citee upon arraignment. Conformed copies of the charging affidavit and the Order to Show Cause re Contempt (OSC re Contempt) must be served on the citee at least 21 calendar days before the hearing (Cal Civ. Proc. Code § 1005(b)). Service of the notice must be effectuated in a manner authorized for service of summons (generally, personal service). OSC re Contempt is not properly served by the more lenient California Code of Civil Procedure, Section 1010 et seq. methods for service generally (Cal Civ. Proc. Code § 1016; Cal Fam. Code § 215). Service on the citee’s attorney will not suffice in a contempt proceeding (Cal Civ. Proc. Code § 1015, 1016; see also Cal Fam. Code § 215).
Opportunity to be Heard on the Contempt
Contempt proceedings cannot be decided on the moving and responding pleadings alone because the citee is constitutionally entitled to a formal hearing and must be allowed to testify in his/her own defense, to call and cross-examine witnesses, and to introduce evidence (Cal Civ. Proc. Code § 1217).
Application of the 5th Amendment in Contempt Proceedings
The citee must be afforded the testimonial privileges of a criminally accused defendant. He or she is entitled to exercise the privilege against self-incrimination and the privilege is not waived by filing an answer to the charging affidavit (U.S. Const. Amend. V).
Right to Jury Trial in Contempt Proceedings
The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to a jury trial in all “serious” contempt proceedings and the California Consitution extends the right to all criminal prosecutions above an “infraction.” Thus, there is a right to jury trial in criminal contempt proceedings that carry a maximum penalty of 180 days (6 months), plus $1,000 fine. If the court proceeds to trial on contempt charges without a jury, and the citee has not expressly waived the right to a jury, the maximum sentence that may be imposed is 180 days (6 months). A longer sentence in violation of the jury trial right will not invalidate a contempt conviction, but the court must reduce the sentence to six months or less (U.S. Const. Amend. VI).
Right to Counsel in Contempt Proceedings
Contempt citees have a due process right to be represented by an attorney, and where the potential penalty includes a jail sentence, an indigent citee has the due process right to court-appointed counsel at the expense of the county. Many citees simply retain or re-retain the family law attorney who represented him or her in the underlying divorce, paternity action, child support case, child custody dispute, legal separation, annulment, adoption, domestic violence restraining order, child custody modification, move away, dissolution of domestic partnership, etc.; however, it is advisable to contact a family law attorney with knowledge and experience in the specific field of contempt defense, as the punishment for a contempt conviction can include jail time.
High Burden of Proof – Beyond a Reasonable Doubt Required for Contempt Conviction
The citee also has the same rights as a criminal defendant, in that the party alleging the contempt must present proof of a prima facie contempt case by competent evidence beyond a reasonable doubt (Cal Pen. Code § 1096). The contempt must be discharged if the charging party fails to meet this burden on each element of the prima facie case.
Double Jeopardy Attaches in Contempt Proceedings
The U.S. Constitution guarantees that a person will not be subject to duplicate punishment or duplicate prosecution for the same criminal offense (U.S. Const. Amend. V; see also Cal Pen. Code § 1387). Double jeopardy protection attaches in a criminal contempt prosecution to the same extent it does in other criminal prosecutions.