What to do if your ex does not pay support or follow visitation: how to file for Contempt.

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.  

Want to learn more?

Is your ex-spouse a "deadbeat"?

My ex spouse stopped my spousal support payments, what are my options?

My child’s mother does not follow our visitation schedule, how can I get her to comply.

How does Mediation benefit children?

Experienced Bay Area divorce attorneys will tell their clients that in a mediated divorce, both parents agree to work together to do what’s best for their children. This means they cooperate to make a plan for how each parent will be involved with their children and how to make decisions as circumstances change. The parenting plan is often based on needs of the and it has a better chance of success.  

My child’s mother does not follow our visitation schedule, how can I get her to comply?

Experienced San Francisco Bay Area family law attorneys will tell their clients that child custody and visitation can always be modified by either parent until the child’s 18th birthday.  

I frequently consult with clients who have court ordered parenting schedules that are no longer followed by the primary parent. Sometimes this happens because my client cannot afford to pay support or they have a new work schedule. However, failure to pay support is not actually a legally sufficient reason to restrict custody and visitation. 

A common complaint is that the primary parent fails to make the child available for the agreed upon court ordered schedule and that the non-primary parent is prevented from seeing the child. If this sounds like your situation, where the custodial parent has stopped complying with a custody schedule, it may be necessary to seek a Contempt order.

As a practical matter, a motion for contempt for custody and visitation is a last resort and may prevent reasonable cooperation and may detrimentally affect the child. Thus, the decision to bring a contempt motion for visitation must be carefully considered and other methods such as FCS mediation and co-parent counseling should be exhausted before a motion for contempt is filed.

Contempt is available to enforce orders governing custody, visitation, and residence of a child. California case law states that contempt is a remedy available against a parent who does not comply with a court-ordered parenting plan regarding custody and visitation.  Additionally, Custody and visitation orders issues by a foreign court are also enforceable by contempt.  Contempt may even be available when a parent fails to follow the spirit of co-parenting. 
In one case, the court had made an initial court order that Mom was not to interfere with Dad’s custodial time. However, Mom attempted to alienate the children by her actions, words and demeanor and she continued to interfere with Dad’s custodial time and was ultimately found in contempt. 

The failure to follow custody and visitation comes up most frequently in the context of teenagers.  

I frequently get questions by parents of teenagers whose teenagers refuse to see the non-primary parent. Unfortunately, these cases may not be good candidates for Contempt because if a parent shows that they do not have sufficient control of the teenager, then there can be no contempt finding if the child refuses to participate in the ordered visitation.  For example, a custodial parent may not be held in contempt for violation of a visitation order based on the failure of an unwilling child to visit unless you show proof that the parent is able to compel visitation. 
In the context of child custody and visitation, in order to successfully pursue a contempt charge, you must describe the details of the violations that give rise to the charge of contempt. These are frequently documented in emails, text messages, and phone logs. You can prepare for a contempt hearing by describing how the order was violated and when it was violated.  To learn more about filing Contempt, contact Gordon Family Law at (415) 326 – 4148.

Want to learn more, including how to file for Contempt?

Check Out:

What to do if your ex does not pay support or follow visitation: how to file for Contempt.

Is your ex-spouse a "deadbeat"?

My ex spouse stopped my spousal support payments, what are my options.

Modifying Custody Orders

What can you do if you are no longer happy with the custody and visitation schedule that you have with your ex spouse? Are you seeking sole custody, or a revision to your joint custody schedule?   

First, either parent may petition to modify or terminate joint custody. [FC §3087.] This petition usually takes the form of a Request for Order, however, it can be presented to court as an ex parte application or a noticed motion.  

Next, Parties must prepare Judicial Council forms of custody or visitation orders for a Judge's signature.  
•    The findings and order after hearing [see form FL-340],
•    A child custody and visitation order attachment [see form FL-341],
•    A supervised visitation order attachment [see form FL-341(A)],
•    A child abduction prevention order attachment [see form FL-341(B)],
•    A children's holiday schedule attachment [see form FL-341(C)],
•    An attachment for additional provisions for physical custody [see form FL-341(D)], and
•    A joint legal custody attachment [see form FL-341(E)].
Check your local rules for specifics to see whether you will need to make an appointment with the Court appointed mediator.

A Judge will review the request for a change and will make a modification or termination if the Judge believes that modification is in the child's best interest.  

Below is some of the basic vocabulary so you can understand what you can ask to change.

Joint legal custody: Both parents share the right and responsibility to make decisions relating to the child's health, education, and welfare. [FC §3003.] Either parent acting alone may exercise legal control over the child in a joint legal custody arrangement unless your order requires joint decisions. If you require joint decisions, the Judge’s order must specify the circumstances when mutual consent is required and the consequences of failing to obtain such consent. [FC §3083.]
 

Joint physical custody: Each parent has significant periods of physical custody. [FC §3004.] An equal division of the child's time is not required. [Marriage of Birnbaum (1989) 211 CA3d 1508, 1515-1516.] Some judges consider any timeshare over 30 percent to be joint physical custody. The order must specify the rights of each parent to physical control in sufficient detail to enable a parent deprived of that control to implement anti–child snatching and kidnapping laws. [FC §3084.]
 

Joint legal and physical custody: Parents share joint legal and joint physical custody. [FC §3002.] If both parents agree to joint custody, there is a presumption that it is in the child's best interest. [FC §3080.] Otherwise, with exceptions for domestic violence and abuse, it is generally within the judge's discretion whether to award joint custody. [FC §3081.] On request of a party, the Judge must state the reasons for granting or denying a request for joint custody. [FC §3082.] In ordering joint physical or joint legal custody, the Judge may specify one parent as the primary caretaker and one home as the primary home for purposes of determining eligibility for public assistance. [FC §3086.]

For a Judge to change a custody and visitation order, they must find a significant change in circumstances.  This means that subsequently occurring material facts and circumstances make a change essential or expedient for the child's welfare. The changed circumstance rule assumes that the prior final order was in the child's best interest based on circumstances as they existed at that time. The party seeking the change has the burden of demonstrating a sufficient change in circumstances. 

This means that if you want to change or modify your existing order, there must be a significant change of circumstances, such as increase of time available for child care, change of job, or change of the other parent’s status and ability to care for the children.

If you are concerned that the Court may not grant your requests, it is best to consult with an attorney to evaluate your case.  

You can contact me at Amanda@gordonfamilylaw.com for more information.