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What To Do When A Family Court Order (Child Support, Visitation, Debt Responsibility, etc.) is Ignored?

Clients often ask me what they can do when an ex-spouse or former domestic partner violates or ignores a Family Court order regarding child support, visitation rights, restraining orders, etc. If such a violation occurs, they ask, shouldn’t the offending party be subject to a contempt of court action?

In California, most contempt of court actions relating to Family Court orders are considered criminal proceedings. When such an action is brought in Family Court, the person charged with contempt has the same rights as anyone facing criminal prosecution. This includes the right to an attorney, the right to a formal reading of the charges against them, and the right to testify and cross-examine witnesses. As for prosecuting such an action, there is generally higher burden of proof involved where the accused can be found guilty only if the admissible evidence provides their guilt beyond a reasonable doubt.

If found guilty, the Defendant faces possible jail time, community service, and/or having to pay a substantial fine.

There are exceptions to what can be brought as a contempt action. For example, when the court orders one party to pay a debt obligation to a third party (such as a credit card company), a former spouse/partner cannot seek contempt for failure to pay. California, like most states, do not allow criminal charges for failure to pay consumer debts.

With all of the above in mind, many people who believe they have been wronged as a result of their ex-spouse/partner’s violation(s) of court order(s) think it’s a no-brainer to file contempt charges and throw the “dead-beat” in jail, especially if the other side fails to pay court-ordered support.  However, I offer a word of caution: often incarceration leads to additional, future issues.  A person responsible for paying support may have trouble paying support when he/she is not working due to being in jail and the conviction/jail sentence may cause that person to lose his/her job permanently.

If you still desire to pursue contempt charges against a spouse or partner, you will need to make sure your pleadings specifically set out your claims.  Here are a couple of tips:

Burden of Proof. To establish contempt of a Family Court order, you have to show (1) you have a valid court order, (2) the other party has actual knowledge of that court order, and (3) the other party willfully violated that court order.

A valid court order 

Contempt can only be brought when there is a violation of a valid court order.  Any agreement between parties that’s hasn’t been accepted by the Court as its order is not enforceable by contempt. If you assert to the Court that the other party “promised” by email or text to make pay you child support or allow visitation with your child but no court order has been issued, your contempt action will likely be turned away.

Knowledge of the court order 

The person you wish to have charged with contempt must be shown to have knowledge of the existing Family Court order. This requirement is usually met if the Court entered orders after a hearing attended by both parties.  However, if you proceeded with obtaining orders by default—i.e., a situation where the other party didn’t participate in the original court proceeding where the support obligation was ordered —you must prove that person actually received (and has knowledge of) the court order.

Willful violation of the court order 

The person being charged with contempt must be shown to willingly defy the Family Court order. In a situation where that person is in jail or otherwise incapacitated (and therefore unable to earn money to make payments), a contempt action probably won’t result in the desired outcome.

Be Specific. In my experience, many contempt actions get tossed out of court because the description of the violation is too vague or ambiguous.

For example, charging someone with contempt because he “always fails to make regular monthly child support payments” generally won’t hold up as a valid count of contempt. However, being specific—“In January 2015, my ex-husband was supposed to pay $1,000 in child support and he didn’t make the payment”—is a much better charge.

In general, always be prepared to provide your attorney with specific details about your matter.

Contempt of Family Court order actions do have their place in enforcement of orders, but usually are a last-ditch effort.  Fortunately, there are other means by which to enforce a court order to pay child support, to ensure a parenting plan is adhered to by the other party, and to try to make sure each party takes responsibilities for their respective obligations under court orders. If you are banging your head against the wall because the other side refuses to cooperate with court orders, seek the advice of an experienced attorney to explore your options and take the appropriate steps to get the relief you desire.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

What Can a Restraining Order Do?

A restraining order (also known as a “protective order”) can be as powerful as a court order or as flimsy as a piece of paper. You can’t hold it up in front of someone with a gun and expect it to protect you.

However, a protective order can serve a useful purpose, which I’ll get to in a minute. First, it’s important to know the five most common types of restraining orders a court can issue:

Workplace Violence Restraining Order

When an employer notices that an employee is being harassed, assaulted, stalked or otherwise threatened by a third party, that employer can request that the court issue an order restraining the perpetrator from coming anywhere near the place of business. The employee cannot ask for this type of restraining order, though he or she has other options.

Civil Harassment Restraining Order

This is a legal option for a person being stalked or harassed by an individual with whom they do not have a close, personal relationship (such as a neighbor, roommate, acquaintance, etc.)

Elder or Dependent Adult Abuse Restraining Order

This option exists for people who are over the age of 65, or under 65 but subject to a conservatorship or some disability that makes them unable to care for themselves. It can be filed against a caretaker, family member, or other person in situations where the elder or adult dependent is experiencing physical or financial abuse; neglect; harmful physical or mental treatment; or deprivation of basic human services.

Criminal Restraining Order

This type of protective order is usually sought by a criminal prosecutor, sometimes at the victim’s request, during the course of a criminal proceeding. It’s designed to protect a victim from the perpetrator of domestic violence (or some other harassing actions), while an abuse, battery or assault case is underway.

Domestic Violence Restraining Order

This is the most commonly filed of these different types of protective orders. Typically, it involves an individual with whom the protected person has a close relationship (as in a current or prior marriage, live-in situation, or just dating). It can also be sought on behalf of children, even if they are not the children of the perpetrator. It can restrain an individual pharmacy from doing certain things—such as making physical or verbal contact, stalking, threatening or otherwise disturbing the peace.

So is a restraining order effective?

The answer is yes, under certain conditions. In many cases, the threat of criminal prosecution for a violation of a restraining order is just enough deterrent to cease the abusive behavior. Additionally, if the restrained person isn’t a U.S. citizen, a restraining order against that person may affect his or her immigration status (and prosecution for a violation of the restraining order most likely will affect his or her legal status. Further, if law enforcement gets a 9-1-1 emergency call, they may jump a little faster if there’s a restraining order already filed against an alleged perpetrator.

Keep these tips in mind if you’re considering asking for a restraining order:

  • Details, Details, Details. Be very specific in relating the types of incidents involved—dates, times, locations, and a precise description of the action. Reporting that you were “hit on the left side of the face with his fist” is more effective than, simply, “he hit me.”
  • File Promptly. Ask for a restraining order promptly after an incident has occurred. If you delay and wait several weeks or months, the court may feel that the threat of abuse is no longer present, or wasn’t even there in the first place.

In my experience, a restraining order often serves as a good deterrent against future abuse or harassment. It’s not guaranteed to change the negative behavior, but can serve as a warning. But even with a restraining order in place, the person involved must remain alert and utilize the services of local law enforcement if they continue to be harassed.

If you believe you have grounds to request a restraining order, it’s a good idea to talk to an attorney and make sure such an action is in your best interests.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.