Filing Contempt of Child Support in California
Child support documents are legal entities, enforceable by California family courts. Ignoring these documents could result in serious penalties – including jail time. The procedure for contempt cases, including violations for child custody or support, will vary. It is also important to note that not all orders are enforceable, especially if they were not completed in accordance with the law at the time.
Contempt of Court Can Be a Criminal Process
There are two types of contempt proceedings in the state of California. The criminal aspect requires an attorney to file an Order to Show Cause and an Affidavit for Contempt. This is mandatory; family law courts cannot proceed without these filings.
Contempt of court proceedings are criminal in nature and require a burden of proof, just like any criminal case. Also, the individual at-risk for contempt has the right to take his or her case in front of a jury, if preferred.
Requirements for Holding a Spouse in Contempt
To hold the accused spouse in contempt of court, you will need:
- A valid court order. There is no case for contempt without a valid court order. Vague court orders that do not specifically state the requirements for child support cannot be enforced during a contempt proceeding.
- The accused must be aware that there was a court order. While you may have a valid court order, the accused must have been aware of that order. Typically, he or she is served a copy of the order when it is created, or the order is signed by the accused. In some unique situations when they are not served, the accused may not be in contempt.
- The accused must have willfully violated the agreement. That is, the accused must have purposefully violated the document. If your spouse had the ability to pay child support, but outright refused, this is considered contempt. If the accused can use the defense that he or she did not presently have the ability to comply with the court order, he or she may not be considered “willfully” violating the agreement.
It is important to note that the ability to pay is a factor in child support contempt cases. If the accused could have partially paid, then he or she can still be in contempt if failing to partially pay or make any attempts to pay child support. If, however, the accused can show that available funds went to rent or mortgage and food, and that there is clearly an inability to pay fully or partially, there may be no case for contempt.
In California, you must start the contempt proceedings no later than three years from the date that the payment was due. Also, each month that is not paid under the child support order is considered a separate offense. Therefore, if your spouse failed to pay six months, there are six separate contempt charges.
Speak with a Family Law Attorney
If you need to file contempt of court orders against an ex-spouse or partner for non-payment of child support, you should contact a family law attorney immediately. Call Sarieh Law Offices, ALC now for a free 30-minute consultation, and we will assist you with your case. Schedule your appointment at 714-542-6200 or fill out our online contact form with your legal questions.