Contempt of Court Orders Attorneys in Orange County Guide
Contempt of Court Orders in a California Court
Contempt of Court Orders Attorneys in Orange County explain: A court order is issued by a judge at the end of a legal proceeding, whether it is a hearing, a trial, an appeal, or a form of alternative dispute resolution. Court orders define a relationship between the involved parties, and list the legal rights and obligations of each party. In order to be legal and valid, it needs to be signed by a judge. Court orders can be issued for a variety of legal issues.
When a party to a court order fails or refuses to follow the obligations of the order, the other party may file a Contempt of Court Order to Show Cause with the Court. It is then up to a judge to determine whether the accused party is in contempt of a court order, and to issue punishments including fines, community service, and/or imprisonment, depending on the guilty person’s previous record.
If the Court wishes to impose a punishment of more than six months imprisonment, the accused has the right to a trial by jury; if, however, the matter is not heard by a jury, the maximum prison sentence is six months.
There are two types of contempt: civil and criminal. In a civil contempt case, the legal consequences include a remedial punishment, meant to benefit the plaintiff. The goal of this type of contempt proceeding is to right a wrong through enforcing the order, and ensure that the party that was intended to benefit from the court order will receive those benefits.
Criminal contempt is a misdemeanor, and its legal consequences include a punitive sentence, that is meant to punish those who violate the authority of the court. Punishment for criminal contempt (without a jury trial) can be up to six months in jail, and/or a fine.
In California, most court orders relate to family law. A family law order can be enforceable by contempt as long as, in accordance with the U.S. Constitution, a person is not imprisoned for nonpayment of debt.
It is important to remember here that an order does not necessarily constitute debt just because it involves the payment of money. A child or spousal support order, for example, is considered a support obligation, rather than a debt. Obligations are imposed by the law.
What types of court orders can be punished by contempt of court law in Orange County California?
In order for a person to be punished for contempt of a court order, the order must meet the following requirements which render it valid and legal:
• The he judge who issued the court order has signed it, the Court holds the power to issue such an order;
• The court order lists specific and narrow terms that were set by the Court;
• The court order is in writing, it is filed with the clerk or is entered in the court’s minutes, and both parties are aware of the order’s existence.
Because court orders can be issued for so many types of legal issues, a violation of a court order can lead to a variety of legal consequences. In California, most court orders relate to some area of family law, but there are several types of court orders that are enforceable by contempt.
Support Orders - This category includes child support, spousal support, and family support orders. Although they are financial obligations, these are not considered debts, but support obligations that have arisen due to marriage or parentage, and are enforceable through contempt of a court order. It is possible to initiate contempt proceedings for a late or partial payment, however, it is best to discuss this option with your family law attorney.
Most support orders require a monthly payment throughout the term of the order. Each missed payment constitutes a separate count of contempt, which affects both the statute of limitations for initiating contempt of a court order proceedings, and the potential punishment should the accused be found guilty.
Similarly, if a spouse who is ordered to seek work fails to do so, he or she can also face contempt of a court order. This usually happens when a person is receiving temporary spousal support until he or she has found appropriate work to support him or herself.
Child Custody and Child Visitation Orders - A parent who willfully interferes with the other parent’s rights to custody or visitation can be charged with contempt of a court order. Depending on the contents of the order, this could include failing to appear at a meeting place to either pick up or drop off the child, attempting to relocate with the child without modifying the order, or a number of other situations.
Child custody and visitation orders are some of the most violated, but least enforced through contempt proceedings court orders.
As a child grows older and has more free will, it can be more difficult to enforce a custody or visitation schedule. A child may choose which parent he or she wishes to spend time with. Rather than fighting this through contempt of court proceedings, it might be best to modify child custody, visitation and child support orders to fit the best interests of the child.
Orders to Pay Attorney Fees & Costs - If the obligation to pay attorney fees is imposed by the Court based on one party’s ability to pay, it would not considered a debt, meaning that it could be enforced through contempt of a court order proceedings.
Property Division Orders, Marital Debt Liability Orders/Equalization Orders - California is a community property state. This means that when a couple is divorcing, property is categorized as either separate property or community property. Community property is divided equitably by a court order, which may require one spouse to relinquish certain property to the other Additional orders may be issued, like an equalization order that requires one spouse to pay debts in order to ensure equitable division under the law.
Even when a property division related order deals with money, it is not considered a debt, but an obligation, because of the right of both parties to equitable division of community property.
Domestic Violence Restraining Orders & Other Protective Orders - Restraining orders and protective orders can vary greatly, from the amount of time for which they are valid to what the restrained person is prohibited from doing and what they are obligated to do. A violation of these orders can be penalized through contempt of a court order.
Restraining orders can order a person to refrain from doing a number of activities. Doing any of the activities that are specifically listed in the order may result in contempt of a court order case. The following lists some specific terms that can be included in a California personal conduct, stay away, or residence exclusion restraining order:
• A person can be prohibited from contacting the protected person in any way, including phone calls, text messages, emails, letters, etc;
• A person can be prohibited from attacking, striking, or battering, stalking, threatening, harassing, or assaulting the protected person;
• The restrained person can be prohibited from destroying the personal property of the protected person;
• The restrained person may be restricted from being within a specific distance of the protected person’s home, workplace, vehicle, children’s school or place of child care, or other important places;
• The restrained person can be required to move out of the protected person’s home with only clothing and necessary belongings.
Violating any of these can leave room for contempt of court proceedings.
Failing to Comply with Declaration of Disclosure Requirements - According to the California Family Code, both spouses are required to disclose certain information, especially regarding property and assets, during a divorce proceeding. Failure to do so allows the spouse who refuses to comply to be held in contempt of a court order.
Failing to Comply with a Wage Garnishment Order - In some cases, the Court may authorized wage garnishments to ensure prompt support payments, however, if the person’s employer does not comply with the wage garnishment order, the employer can face contempt proceedings. This may leave the parent or spouse who owes support payments off the hook because they may not have had control over the refusal to garnish wages.
How Can I Petition to Hold Someone in Contempt of Court?
If you are dealing with the consequences of a person failing or refusing to follow the requirements and obligations of a court order, you can petition to hold them in contempt of a court order. Because the majority of contempt of court proceedings have to do with family law, it is usually a parent, spouse, or former spouse who is eligible to initiate a contempt of court proceeding.
As stated above, the majority of cases are family law related, and are considered criminal contempt. Discuss your case with an attorney, because in some cases, contempt of a court order is a civil case.
The first step in enforcing a court order or judgment is to present a charging affidavit or Affidavit for Contempt, to the Court. There is an Affidavit for Contempt form that is specific to child support, spousal support, family support, attorney fees, and court or litigation costs, and there is a different Affidavit for Contempt form for contempt of a domestic violence restraining order, or a child custody or visitation order. An attorney can help you complete the correct affidavit according to the law, and submit the affidavit to the correct office. The initial affidavit must be filled out correctly and completely; it cannot be corrected with additional evidence at a later date, or at the hearing.
The person who wishes to initiate proceedings is responsible for meeting the burden of proof, meaning that the accuser must have evidence, beyond a reasonable doubt, that the accused is in contempt of the court order. You will also need to file an Affidavit of Facts, which should name the type of order that was violated, the date the order was issued, and it should list how the order was violated and the date the violation took place.
It is important to act immediately, before the statute of limitations has occurred. (See Statute of Limitations, below)
Once the appropriate paperwork is correctly filled out, filed in the correct office, and the filing fee has been paid, the Court will issue a signed Order to Show Cause (OSC), which will need to be served on the accused with the Affidavit for Contempt, and will order the accused to appear at a hearing at a specified time and date. These must be served no less than 21 calendar days, or three weeks, prior to the date of the hearing.
Enforcing a civil order and a criminal order require slightly different procedures. Criminal contempt of a court order includes most family law cases. To begin the proceedings, you must file and serve an Order to Show Cause (OSC), an Affidavit for Contempt, and an Affidavit of Facts Constituting Contempt. The difference between the two lies in the punishment and in which party is responsible for the burden of proof. In a criminal proceeding, the burden of proof lies with the accusing party; in a civil proceeding, the burden of proof lies with the accused.
Does my California Contempt of a Court Order Case Have a Chance?
Statute of Limitations for Contempt of a Court Order in Orange County
A statute of limitations places a time limit on how long a person has in which to initiate legal action regarding an alleged offense from the date the offense allegedly occurred.
In California, there are different statutes of limitation for different types of contempt of a court order’s proceedings.
A support order, including a child support order, a family support order, or a spousal support order, requires a person to pay support monthly, according the order. The statute of limitations for a support order is three years from the date of the missed payment. However, each missed payment may be counted as a separate action of contempt.
This means that if payments were missed continually from three years and three months previously until two years previously, the recipient may file initiate contempt of court proceedings for those missed payments from started three years previously to two years previously. Those payments that were due three years and three months, two months, and one month previously occurred beyond the statute of limitations, and are therefore not eligible for contempt of a court order proceedings.
Violations of other family law related court orders, including child custody, visitation, property division orders, and others, have a statute of limitations of two years from the time that the alleged contempt took place.
How Can I Fulfill the Burden of Proof in Contempt of Court Proceedings in California?
The basics of fulfilling the burden of proof in a contempt of court proceeding requires you to meet the following three criteria:
- There is a valid and legal court order;
- The accused had knowledge of the court order and was able to comply;
- The accused willfully and knowingly disobeyed the court order.
A valid order is necessary to establish that the accused has actually broken the law. A valid court order must be issued and signed by a judge. The Court must have the power to issue such an order. The charging affidavit must state the type of order and the date of issue. If the original order has been modified, the original is no longer valid and the accused is responsible for meeting the obligations of the modified order instead. Usually the existence of the order is not in dispute during contempt of court order proceedings.
In order to meet the obligations of a valid order, the accused must have had knowledge of the order’s existence. It is necessary for the charging affidavit to include proof that the accused had knowledge of the order. There are three ways that this can be done.
First, it can be proven that the accused was present in court when the court order was issued. Every court order begins with a list of the people who were present in court each day. If the accused was present at the court when the order was issued, he or she is presumed to know of the court order’s existence.
Second, if the accused was served with the court order, and you followed with filing a proof of service with the court, there is a record that the accused received the order, and is therefore aware of its existence.
The third way to prove that the party was aware of the existence of the court order is to show that the party followed the order for a period of time, or attempted to have it modified.
The final component in fulfilling the burden of proof, willful disobeying the court order, varies between different types of orders. Some examples are below.
For support orders, including child support, family support, and spousal support, the accused is required to pay support according to the support order, which was created based on both the need of one party, and the ability of the other party to pay. If either of these circumstances has changed, the order will not change unless one party legally modifies the support order. If inability to pay is the reason that the order was disobeyed, the burden of proof here has already been met, because the ability to pay was determined at the time the order was issued. Therefore, the burden here lies with the accused that must prove that they are unable to pay. Support orders cannot be retroactively modified, however the accused can apply to have the order modified for future payments.
In some cases, with support orders, the inability to pay must be weighed against the willingness to pay or to prioritize support payments.
For child custody and child visitation orders, the third component of the burden of proof is much easier to prove while children are young and have less control over their own lives. A parent can be held in contempt of a visitation order when he or she is the custodial parent and has control over the child’s life, and has the ability to keep the child from visiting with the other parent. This is why, when a child is young, proving that they willfully kept the child from the noncustodial parent is easier than when the child is a teen and has the freedom to go out on his or her own, or to make up his or her own mind to intentionally avoid the noncustodial parent. The custodial parent of a teenager may lack the ability to comply or to willfully disobey a visitation order, and may not be held in contempt of a court order in this case.
The Ability to Comply with a Court Order
If the individual in question did not willfully disobey the order, but was unable to comply with the terms of the order, he or she may not be held in contempt of the court order. This can be used as a defense by the accused, but it is also the responsibility of the accused to apply for a modification of the court order if he or she is unable to comply with the order due to a change in circumstances.
I’m Confident in my Case. How do I File the OSC and Affidavit Forms in Southern California?
Keep in mind that it is always better to have an attorney look over your forms and assist with the filing of paperwork to ensure that it is done correctly. Your OSC and affidavit forms will need to be filed with the court clerk in order to be signed by the judge.
The accused must be personally served with the charging affidavit and OSC at least 21 days prior to the hearing date. Usually you can have a process server serve the paperwork for a fee if you don’t have someone to do it for you. In the case that it is not possible to locate the accused person or he or she is intentionally avoiding service of papers, it may be appropriate to serve his or her attorney instead. You will need permission from the Court in order to do so.
Things you Should Know if You Are Facing Charges of Contempt of a Court Order in California
What are my rights if I’m facing charges of contempt of a court order in southern California?
The majority of contempt of court order cases are criminal, rather than civil, in nature. The Constitution of the United States guarantees certain due process rights, as follows, to all those facing criminal charges.
The Right to Formal Notification of the Charges - If you’re accused of contempt of a court order, you must be notified of the charge, as well as the time, date and place for the court hearing. This may be done at the time that the accused is served with an OSC (Order to Show Cause).
The Right to be Heard at a Hearing - Facing charges of contempt of court entitles you to a formal hearing, where you are allowed to testify if you choose to, call witnesses, cross-examine witnesses, and introduce defensive evidence. The accused also has the right to utilize the Fifth Amendment, which means that you have the right to decline being a witness, and answering certain questions that may cause you to incriminate yourself.
The Right to Counsel - You have the right to an attorney in your case. When the potential sentence includes jail time, you have the right to a court appointed attorney, paid for by the county.
Criminal Burden of Proof - All those facing criminal charges, including criminal charges of contempt of a court order, are presumed innocent unless the accusing party can prove them guilty by meeting the burden of proof. This means that the person who has filed the contempt of court charges needs to provide evidence beyond a reasonable doubt, or the contempt will be discharged.
Trial by Jury - The Sixth Amendment to the U.S. Constitution guarantees the right to a jury trial for serious criminal contempt, for example, if the potential sentence is imprisonment of more than six months. California law guarantees a jury trial to those facing prosecution for charges above an infraction, including those at the misdemeanor or felony level. However, this does not include all contempt cases, and it is best to discuss your case with a specialized attorney in California.
Protection Against Double Jeopardy - The U.S. Constitution guarantees protection from prosecution or punishment more than once for the same criminal offense.
How to Respond to an Accusation or Charge of Contempt of a Court Order in California
You may or may not have been expecting that you would be served with an OSC and affidavit charging you with contempt of a court order. Prior to the hearing date listed, you have three options when answering the charge:
- Admit that you have violated the court order;
- Deny that you have violated the court order;
- Move for a discharge of the contempt without admitting or denying the violation.
If the accused wishes to fight the charge, he or she has the option to file an opposing affidavit, which can either present an excuse or justification as to why the court order was not obeyed, or to question the opposing party’s original affidavit.
Your attorney will help you build a case on your behalf, and guide you towards the options that are in your best interests.
Defending a Denial
When building a defense, one of the three components of the burden of proof must be disproven. You can either show that the order does not exist or is not valid, you were not aware of the court order’s existence or were unable to fulfill the obligations at the time the order was issued, or that you did not willfully disobey the court order.
The most common defense to a charge of contempt of a court order is to prove that the order was not willfully disobeyed due to the accused’s inability to comply with the terms of the order. If you choose to use this defense, it is your responsibility to find evidence that shows why you are unable to comply with the terms of the court order. This defense will not excuse the failure to comply with the order if it is found that your inability to do so was due to your own actions or intentionally disobeying the order.
Discharging the Charge of Contempt without Providing an Answer
The accused you choose, rather than to defend him or herself or to admit guilt, to discharge the affidavit without providing a reply on certain grounds.
• If the charging affidavit does not prove, beyond a reasonable doubt, that contempt of a court order occurred;
• If the court order was not valid at the time of the alleged contempt. A court order may expire or may have been modified prior to the date the alleged contempt occurred, in which case it was not disobeyed on that date. However, whether the court order has been modified or has expired at the time of the court proceedings has no effect on the validity, all that matters is the validity at the time of the alleged contempt.
• If the accused has previously been excused for the same offense, he or she cannot be brought up on charges again. The U.S. Constitution protects all from double jeopardy.
What Happens at a Contempt of Court Hearing in California?
If you’re facing charges of contempt of a court order, either you or your attorney are likely required to appear at the hearing. Failure to appear when you are required to do so can result in a warrant to ensure your presence. The hearing cannot proceed without the accused or the accused’s attorney unless they intentionally skipped the hearing AND the OSC and affidavit for contempt were served according to the law.
How is the Number of Counts of Contempt Calculated for Contempt of a Support Order?
As stated above regarding the statute of limitations for contempt, each missed payment, usually one payment per month, can be counted as a separate count of contempt. A person may face a multiple punishments if he or she is found guilty of multiple counts of contempt.
This applies even if there was only one charging affidavit. The charging affidavit may list several months’ worth of support payments that were missed; if found guilty of missing all payments listed on the affidavit, separate sentences will be issued per missed payment.
What Penalties Exist for a Conviction of Contempt of a Court Order in California?
If it is determined that the accused is guilty of contempt of a court order, he or she will face sentencing based on the order that was violated and his or her prior record. California family law mandates community service and/or imprisonment for disobeying a court order. All those found guilty, regardless of prior record of contempt, will be ordered to pay an administrative fee for the administration and supervision of community service.
First Offense - Finding a person guilty of contempt for the first time results in a sentence of up to 120 hours of community service, or imprisonment of up to 120 hours, the equivalent of five days, for each count of contempt.
Second Offense - A person who is found guilty of contempt for the second time will face a sentence of up to 120 hours of community service in addition to, rather than as a second option to, 120 hours or five days of imprisonment, for each count of contempt.
Third Offense - If a person is found guilty of contempt of a court order for a third or subsequent time, he or she will be ordered to perform up to 240 hours or ten days of community service and will be imprisoned for up to 240 hours, or ten days, for each count of contempt.
The person who is found to be in contempt may also be required to pay the accusing party’s attorney fees and costs that were incurred in connection with the contempt proceedings.
If the person who has been charged with contempt is found to have the ability to comply with the court order but still refuses, he or she may be imprisoned until he or she complies with the order. Usually this happens in a child custody case when one party refuses to allow the other to se the child.
Are You Considering Filing a Contempt of Court Petition with a California Court? Are You Facing Charges of Contempt of Court in California?
Either way, it is in your best interests to contact a knowledgeable attorney in Southern California. Each contempt of court case is unique, and your attorney can help you determine how to best approach your case.
Contact the Contempt of Court Orders Attorneys in Orange County today to discuss your case, your options, and the best course of action to enforce your court order with a knowledgeable family law and contempt of a court order attorney.
Table of Contents