Contempt of Court in Family Law Cases
Contempt of Court Defined:
To be in contempt of court means to willfully disobey a court order or to willfully disruptive a court proceeding. Contempt of court may be classified as either criminal contempt, or as civil contempt. The important difference between criminal contempt and civil contempt has to do with their associated remedies and penalties (See Contempt of Court Penalties).
Civil Contempt: Civil contempt of court is the preferred charge in family law cases when a party willfully disobeys a court order to pay child support or spousal support. When a family law judge finds a party in civil contempt of court the judge will design court orders necessary to prevent further disobedience of those orders. For example, a family law judge may order a defendant to jail for willful failure to pay child support until the defendant actually pays the child support owed. In this example, the defendant may avoid jail, or be released from jail, when he or she complies with the court’s order to pay the child support.
Note: A family law judge may also punish a person in civil contempt of court by sending that person to the county jail for up to five days for each act of civil contempt. This is purely a punishment remedy for the judge in civil contempt of court cases, but the law limits the amount of jail time a person may serve in civil contempt cases to five days in jail for each act of contempt.
Criminal Contempt: In family law court, criminal contempt is usually reserved for willful disobedience of a court proceeding. Criminal contempt carries much longer jail sentences than civil contempt. Criminal contempt is charged as a misdemeanor under penal code section 166(a) and may also have an impact on a party’s immigration status, professional licensing status, revocation of active probation on prior cases, and more. Also, criminal contempt may carry probation sentences and harsh terms that have no relationship to the payment of child support or spousal support.
Orders Subject to Civil Contempt in Family Law:
Civil contempt of court charges are often filed in family law cases against a party who willfully disobeys a court order to do any of the following: pay child support, pay spousal support, pay family support, comply with child visitation schedules, deliver property to opposing party, search for a job, comply with domestic violence restraining orders, or to comply with rules of evidence discovery.
Note: Orders for property exchange are not usually subject to the court’s contempt power unless the exchange was substantially related to the payment of spousal support or child support, unless the parties agree to that option in a marital settlement agreement.
Filing a Motion for Contempt
Before a defendant may be found in contempt of court (civil or criminal) for willful disobedience of a court’s order the prosecuting party (plaintiff) must prove four elements: 1) There is an unambiguous court order in place, 2) the defendant was aware of the court order, 3) the defendant willfully disobeyed the court order, and 4) the party alleging contempt has given the defendant an opportunity to comply with the court order.
Contempt Procedure: Contempt of court prosecution requires the plaintiff to file an affidavit of contempt, a request for orders, and declarations in support of his or her allegation. It will also require the present evidence in court and abide by court procedures, California law, and evidentiary rules.
A party in a contempt action should not attempt to prosecute or defend his or her case without the assistance of a family law attorney who has prosecuted or defended contempt of court cases and who is also familiar with criminal defense procedures. Remember, the plaintiff has the burden of proof in a contempt of court case and the family law judge is not lenient on the rules of court, California law, or evidence procedures, just because the plaintiff is not familiar with the law. Also, a defendant's statement in a contempt of court case may be used against him in both criminal court and in family law court.
Contempt of Court Forms: The common forms required to start or defend a civil contempt court may be found at Contempt of Court Forms.
Contempt of Court Penalties:
A judge who holds a defendant in civil contempt may design just about any orders necessary to encourage compliance with the court’s original order that was disobeyed. Common orders designed to encourage compliance with a court’s previous orders include: monetary fines and penalties, award child custody to opposing party, garnish wages, place liens on property, order sale of property to pay for child or spousal support, order payment of opposing party attorney fees, garnish bank account, garnish pension or disability benefits, garnish unemployment benefits, place a lien on lottery winnings, grant unequal division of community property or debt, and more.
Note: California law provides that civil law judges may add up to five days of jail for each act of civil contempt without granting the defendant the right to a jury trial. This punishment is in addition to any other non-incarceration orders designed to encourage compliance with the court’s orders. In child support and spousal support cases each willfully missed payment is considered a separate act of civil contempt.
Criminal Contempt Sentence: When a judge finds someone in criminal contempt of court the judge will seek to punish the defendant with fines and/or incarceration in jail and encouraging the defendant to comply with the court's previous order is no longer an issue. Criminal contempt of court is usually charged in family law proceedings when a party willfully disrupts a court proceeding and incarceration is needed to secure the court during legal proceedings. Criminal contempt of court may be charged for willful disobedience of a court order as well, but, as stated, civil contempt of court is usually the preferred charge because defendants who are incarcerated for longer periods of time (common with criminal contempt) are not available to comply with the family law court’s orders to pay child support, pay spousal support, comply with child visitation, etc., which is further detriment to the child, spouse, etc.
Other Penalties for Contempt Include: Revocation or suspension of the defendant’s driver’s license (for willful failure to pay child support or spousal support) and/or revocation or suspension of the defendant’s professional license, i.e. doctor, dentist, therapist, lawyer, etc. (for willful failure to pay child support or spousal support).
Defense to Civil Contempt of Court:
Common defenses to a charge of criminal contempt include, but are not limited to: insufficient evidence to prove defendant willfully disobeyed a court order, ambiguity in the court order, mistake of fact, statute of limitations (three years from the date the payment was due), inability to perform, inaction and/or waiver by the plaintiff, and more. In addition to these common defenses, most courts will allow the defendant to purge the contempt by fully performing the original order.
For example, if a former husband falls three months behind on his spousal support payments to his former wife, and thereafter, the former wife files an action for three counts of contempt of court (one contempt charge for each missed spousal support payment), the judge may allow the former husband to purge (fix) his contempt by allowing him to pay three months of spousal support before the contempt of court proceeding commences.
Note: If a party is claiming that he or she has the inability to pay child support or spousal support, or is unable to secure employment, he or she should keep records related to employment searches. The party should also be ready to explain why he or she did not request to modify the court's order for a reduction in child support or spousal support when he or she knew that he or she was unable to pay the amount ordered.
Due Process for Civil Contempt:
When a defendant is served with a notice to attend court on allegations of willful failure to obey the court’s orders (civil contempt), the defendant has procedural rights. These rights include, but are not limited to: The right to receive proper notice of the time and place of the court hearing and the exact allegations of contempt alleged, the right to present evidence, be heard, or remain silent, the right to cross-examine witnesses, the right to be represented by an attorney, and in cases where more than five days of incarceration is possible, the right to a jury trial.
If you have been charged with contempt of court in a family law proceeding contact our family law attorneys without delay for a free consultation. Our attorneys are experienced in criminal and civil law contempt prosecution as well as criminal defense. We have full time family law and criminal defense lawyers ready to help you. Call today!
Contempt of Court in Family Law
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Contempt of Court Forms
- FL-410 OSC & Affidavit for Contempt
- FL-411 Affidavit of Facts in Contempt
- FL-412 Affidavit of Facts in DV Case
- FL-415 Court Order In Re Contempt
- FL-420 Decl. of Payment History
- FL-430 Wage Garnishment Form
- FL-435 Spousal Support Assignment
- FL-485 Notice of Child Support Due
- FL-300 Request to Modify Support
- FL-320 Response to Modify Request
- FL-150 Income & Expense Decl.
- FL-300 Proof of Personal Service
- FL-105 UCCJEA Attachment
Note: Other forms may be required for contempt of court actions in family law cases depending on the circumstances of the case. For complete info on the required forms to prosecute of defend a civil contempt of court action, contact our divorce and family law attorneys for a free consultation.
Updated July 17, 2021