Has your ex continued to fail to pay child or spousal support? Are you worried that your custody and visitation schedule is being ignored without repercussions? We understand. A motion for contempt is available to both Parties in a case when one Party refuses to comply with an enforceable California family law court order.
If you need to file for Contempt, it is important to learn how the Family Court process works. Family Code Section 290.
Experienced San Francisco Bay Area Family Law attorneys like Gordon Family Law advise clients that contempt motions can be time consuming, expensive, and intricate. Due to the complexity of contempt, Gordon Family Law promotes dispute resolution and recommends Family Court Services mediation as a first step. However, not all parties are cooperative in mediation and you may desire to file a Contempt motion against your ex.
What do you need to prove? In order to prove contempt, you must demonstrate: (1) issuance of a valid order that is clear, specific, and unequivocal; (2) knowledge of that order on the part of the party alleged to be in contempt;(3) the ability of that party to comply with the order; and, and (4) that party’s willful failure to do so.
What forms do you need? You must complete an Order to Show Cause and Affidavit for Contempt with Judicial Council Form FL-410 and a an Affidavit of Facts Constituting Contempt—Financial and Injunctive Orders with Judicial Council Form FL-411 or an Affidavit of Facts Constituting Contempt—Domestic Violence/Custody and Visitation with Judicial Council Form FL-412.
How do you get a hearing? The Order to Show Cause form and Affidavit must be filed and served at least 21 calendar days before the date set for hearing. The typical procedure is to deliver the OSC to the Judge and then return to that department to pick up the form and obtain a hearing date from the clerk. Next you must serve the other party. For contempt, service must be by personal service – and cannot be via mail or fax.
What happens at the hearing? At the contempt hearing on the order to show cause for contempt, each party may be represented by counsel. If the other party is not represented, the court may advise your ex of his or her due process rights like the right to counsel and the Fifth Amendment privilege against compelled self-incrimination. Both sides are allowed to present oral testimony and evidence. However, there is no right to a jury trial for contempt in family law.
What does contempt mean, what is the punishment? If your ex is found in Contempt of court for failure to comply with a court order under the Family Code, then he or she could be sent to jail or required to perform community service. The court will ask for future reports on the compliance of the orders.
If your ex fails to appear at court, the court may issue a warrant for their arrest. This means that if your ex is pulled over for a traffic stop, they could be sent to jail without a hearing for contempt of court.