We get calls every day from frustrated people asking for help because someone isn’t paying support, is ignoring custody orders, or is otherwise misbehaving. At some point they ask about pursuing contempt charges. Family Law judges tend to handle contempt a little differently because they are criminal proceedings. As a result, their costly pursuit often fails to produce the desired outcome. Here’s why:
Finding someone guilty of contempt requires the following:
1. There must be a valid court order. Without a valid court order, there is no contempt. Someone ignoring a “parenting plan” or refusing to pay “mutually agreed upon expenses” is not guilty of contempt.
2. There must be knowledge of the order since “contempt” is defined as the willful disobedience of an order. Willfulness is an essential element that can be defended by claims of ignorance, inability to comply, or simply “vague and confusing” orders.
3. Proper notice of the contempt proceedings must be provided. Because it’s a criminal matter, this requires personal service of the court papers.
4. In a case involving a failure to pay support, the burden of proof shifts to the payor. So, the payor must prove that they cannot pay, not the other way around. Assuming the other factors have been met, they will be held in contempt if they cannot prove an inability to pay.
Here’s where things can get tricky — Family Law judges don’t like putting people in jail. A more likely outcome would be new orders which reflect the misbehavior of the individual charged, like new custody orders mirroring their conduct or a stern lecture urging them to change their behavior, stating “Next time I won’t be so lenient.”
If the Court does find contempt, every convicted contemnor is allowed up to 15 days to prepare and argue on the nature of sentencing. In their sentencing memo, counsel can request that the contemnor be sentenced to probation, a $1,000 fine, and up to five days in county jail. More serious consequences require a jury trial, which would be highly unusual in Family Court.
Sentencing will be delayed by these rules, requiring a second court appearance, or third appearance if at the first appearance the alleged contemnor asked for a continuance to allow them time to hire a lawyer. In the end, the likelihood of time in jail is remote; jail is too crowded. Sound expensive? It is. $10,000 in legal fees for a lecture and a wrist slap.
In our practice we find that persuasive letters and skillful negotiation are usually sufficient to resolve these problems without resorting to costly litigation, but when necessary, we zealously fight for our clients.
Remember, our Free Divorce Workshop is Saturday, April 13, from 10AM to noon at our Woodland Hills office. Space is limited so call (818)348-6700 to RSVP.