Contempt of Court and Child Custody

In California, there are two types of contempt of court proceedings. Direct contempt, which occurs when someone misbehaves in court or behaves disrespectfully towards the courts or its proceedings, and Indirect Contempt, when a party fails to obey a judge’s orders. The repercussions can range from financial restitution to actual jail time, so parties may want to think long and hard before they decide to disobey a judge’s mandates.

First and foremost, be aware that violating a custody order is breaking the law under Penal Code section 278.5. You may not think about it this way, as criminal court, family court, and the civil court can seem like entirely different animals due to differences in procedure, but an order given by a judge holds the same weight regardless of venue. If a criminal court judge made an order understood to mean certain jail time if violated, a law-abiding citizen would do their best to adhere to that order…the same consideration needs to be given to a family court judge when rulings are made in matters of child custody.

The court takes into consideration a variety of factors when determining custody. If a custody agreement already exists between parents, a judge is likely to take that under advisement. It is not just the parents who can voice their desires, but also the children, depending on what age they are. Suitability for parenting is also a major consideration…Is either parent emotionally, mentally, physically, and financially capable of providing care for the child? What are the changes that have occurred in the child’s life and what are the likely changes that will happen once the dust settles on the proceedings? Lastly, what are the relationships between all the parties, parents and children included? Is there a history of abuse, neglect, or animosity between the child or either parent or between former spouses? None of these are arbitrary reasons to settle a custody dispute in one way or the other.

It may not always be what a parent wants when a ruling is made. Everybody wants to believe they are the best person for the job when it comes to being a full-time parent, but if you completely remove all emotion from the equation, sometimes the painful truth is that what is in the best interest of the child, and this includes long term, is often contrary to what one parent or the other wants. But if there are circumstances that cause you concern for your child’s wellbeing, begin by consulting your attorney, so that he or she might advise you as to your legal course of action to rectify the situation. This is because you do not want to be the one in violation of the judge’s orders. Likewise, if you know your ex is in contempt, your response should be in the courts.

To prove contempt by California’s standards, one must first have a valid written court order. This means a clear and concise written order detailing exactly when, where, and for how long a child must spend with each parent, as an example. It is incredibly difficult to prove contempt on vaguely worded orders. Usually, both parties have received copies of the court order to sign or are present in court when it is given. There are occasions when one party is not able to make it to a court or was not served with the written court order which can make it a challenge to prove knowledge of the order at all! And finally, the accused must have violated the court order willfully. This doesn’t mean your ex arriving late with your child due to traffic or a meeting that runs long, but rather not allowing that child to spend the agreed-upon number of nights and weekends with you even though they know the terms of the written order.

At the end of the day, is it worth it to violate a court order to save yourself some money or to circumvent a custody agreement when the repercussions of those actions can mean steep fines, jail time, or ultimately reduced custody for the accused? Likewise, it may want to be considered that bringing a contempt of court proceeding forward to recoup past or partial child support payments may be more expensive than what you are owed, especially when there may be other motions that will result in the payment of the support due.

The ins and outs of enforcing a court order can be confusing and complicated. When it comes to something as emotional as your child’s health and well-being, it is tempting to consider fighting fire with fire, she wants to keep my kid from me, then I will just ignore the custody order too. Don’t do it! Remember, if you think your child is in danger, call the police. If you think your ex is violating the custody agreement OR if you think you might be served with contempt of court actions, it is better to have an experienced attorney navigating those complex legal waters for you. There is too much at stake to improvise when it comes to the welfare of your children.

Tracy Duell-Cazes is a Certified Family Law Specialist by the California State Bar. If you having issues related to child custody or there is a contempt of court possibility around child custody, contact Tracy at the TDC Family Law at 408-267-8484.


1530 The Alameda, Suite 108
San Jose, CA 95126

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