Bakersfield’s Divorce & Family Law Attorney
CONTEMPT
A legal party is considered subject to a valid California family court order who, with knowledge of the order and the ability to comply, fails to comply with the terms of the original order may be subject to a contempt adjudication and statutory penalties according to (Cal Civ. Proc. Code § 1218 & 1219).
How to File for Contempt in California Family Court
Contempt proceedings in family court are commenced by presenting a “charging affidavit” to the California court (Cal Civ. Proc. Code § 1211(a). Based on the affidavit (which presents the facts constituting the prima facie contempt), the court must then issue and sign an order to show probable cause directing the alleged ‘contemnor’ to appear and be heard on the charge at a specified date (Cal Civ. Proc. Code § 1212).
In California family law cases, contempt proceedings must be initiated by filing and serving Judicial Council Form FL-410, Order to Show Cause and Affidavit for Contempt, along with an Affidavit of Facts Constituting Contempt (FL-411 or FL-412). These crucial forms have been adopted for mandatory use by the California Judicial Council, so contempt proceedings in family court cannot proceed without the necessary forms.
Jurisdiction to adjudicate a contempt action exists only if the charging affidavit alleges specific facts showing a prima facie case of contempt (Cal Civ. Proc. Code § 1211(a)). However, a deficient charging affidavit can be amended at any stage of the court proceeding per California family law code (Cal Civ. Proc. Code § 1211.5(b)).
Notice of Contempt Charges in California Family Court
The citee must be put on notice of the charge(s) and of the time and place for the court hearing on the charge(s). This includes a formal reading of the charges, although this is regularly waived by the citee upon arraignment. Conformed copies of the charging affidavit and the Order to Show Cause re Contempt (OSC re Contempt) must be served on the citee at least 21 calendar days before the hearing (Cal Civ. Proc. Code § 1005(b).
Right to Counsel in Contempt Proceedings
Contempt citees have a due process right to be represented by an attorney, and where the potential penalty includes a jail sentence, an indigent citee has the due process right to court-appointed counsel at the expense of the county.
High Burden of Proof
The citee also has the same rights as a criminal defendant, in that the party alleging the contempt must present proof of a prima facie contempt case by competent evidence beyond a reasonable doubt (Cal Pen. Code § 1096). The contempt must be discharged (i.e. dismissed) if the charging party fails to meet this burden on each element of the prima facie case.
Double Jeopardy in California Family Law Contempt Proceedings
The U.S. Constitution guarantees that a person will not be subject to duplicate punishment or duplicate prosecution for the same criminal offense (U.S. Const. Amend. V; see also Cal Pen. Code § 1387). Double jeopardy protection attaches in a criminal contempt prosecution to the same extent it does in other criminal prosecutions. Call Canaday Family Law at (661) 328-1910 for immediate help!
