A party who is subject to a valid order, has knowledge of the order, and willfully fails to comply with that order is subject to contempt proceedings and the statutory penalties. Contempt is available in both the criminal and civil arena. However, a contempt proceeding is criminal in nature. The judge will advise you of your constitutional rights especially since the possible penalties include jail sentence.
Family law orders and judgments are based on obligation arising out of marriage or parentage and are imposed by law. Child custody and visitation orders are also within the ambit of the powers of the court to invoke its contempt power against a parent who violates or interferes with the other parent’s court ordered visitation or a restraining order against relocation of the children.
The contempt remedy is subject to a statute of limitations. In California, failure to pay child or family support must begin no later than three years from the date the payment was due. A contempt cause of action for nonpayment should be broken down into separate “counts” for each month of non-compliance.
A “charging affidavit” must be filed with the court. The affidavit should precisely and comprehensively recite the basis of the contempt. The court then issues an order to show cause directing the person who is alleged to be in contempt to appear for a court hearing.
The affidavit must set forth the type of order violated, the date the order was issued, how the order was violated and when the violation occurred. Lastly, the most contested element of willful disobedience must be factually stated in the paperwork filed. Since this element of willfulness is the most difficult to prove, documentary and live witnesses should be presented at the hearing.
(1) Valid order: generally if the judge made a finding based on the facts and circumstances presented, this issue is not a problem. In fact, I will get a stipulation from the opposing attorney that this is not a contested issue and move to the next element.
(2) Knowledge of the order: knowledge can be shown by the obligor being present, his/her signature on the order after hearing or proof that the obligor previously sought relief related to the order (e.g. modification, motion for reconsideration). Again, a stipulation can be reached with opposing attorney in order to save time.
(3) Willful Disobedience: the jury instruction for willful is “intentionally commit the act with actual knowledge of the facts.” The most common defense to nonpayment of support is “inability to pay.” Unless this burden is overcome, there will be no contempt finding by the court.
There has to be deliberate disregard or evading of payment coupled with a showing of the obligor’s ability to pay. This is when your attorney’s skills will be tested. The penalties are statutorily driven. In California, the maximum for the first contempt is 120 hours of community service and 5 days of jail for the first finding of contempt.
The penalties may be aggregated for each of the counts proved. Atty. Castaneda was born in Manila, Philippines and immigrated to the United States when she was 11 years old. She is a graduate of UCLA and UC Hastings College of the Law in San Francisco.