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Posted on March 31, 2016 in Alimony,Child Custody,Child Support,Contempt,Enforcement,Family Law,Spousal Support

“Contempt” is defined in Black’s Law Dictionary as “conduct that defies the authority or dignity of a court or legislature.” Courts make orders and people are expected to obey those orders. In some cases people behave badly and fail to obey court orders. When that happens, one is left to seek enforcement of the court’s orders. There are many ways to enforce court orders.

One enforcement option is to request that the court hold the violator in contempt. This may result in punishment that can include paying a fine or spending time in jail. Contempt actions are complicated and require a sophisticated understanding of the law. The purpose of this article is to briefly explain in a very general manner what a contempt action is and how it works.

There are four main elements that must be established to hold someone in contempt. First, it must be established that a lawful order existed. Second, it must be established that the person had knowledge of the court order. Third, it must be established that the person who did not comply with the court order willfully disobeyed the court order. Fourth, it must be established that the person who did not comply with the court order had the ability to comply with the order.

The moving party has the burden to prove for the court that every one of the four elements of a contempt action has been satisfied. The term “burden” here has a very important meaning, depending on whether the contempt is of a civil nature or a criminal nature. The question of whether a contempt action is criminal or civil depends on a variety of factors, including the nature of the relief imposed.

If a contempt action is criminal, then the party filing the contempt action must prove that all four elements of the contempt action have been established beyond a reasonable doubt.[1] This may not be easy. Additionally, Fifth Amendment protections apply in criminal contempt proceedings, which means that the person who is being charged with contempt cannot be forced to testify in court. Sixth Amendment protections also apply, and the court may appoint counsel to represent the person accused of contempt.

In civil contempt actions, the moving party has a less burdensome evidentiary hurdle than criminal contempt actions. In a civil contempt proceeding, the moving party must establish that all four elements of a contempt action have been established by a preponderance of the evidence. The preponderance standard requires a party to provide “evidence of such weight that, when balanced against that opposed to it, it has more convincing force.”[2] A defendant in a civil contempt proceeding may also be entitled to the same safeguards that apply to criminal contempt proceedings.

The actual process of filing with the court to request that someone be held in contempt requires knowledge and experience. A person requesting this relief from the court starts the process by filing an Order to Show Cause and Affidavit for Contempt (“OSC”). The paperwork that is filed with the court must be completed very carefully.  Whether a contempt proceeding will be criminal or civil should be considered at the time the OSC is filed.  Before even getting this far, one must consider all of the options available for enforcement of the court’s orders.

It is best to consult with an experienced attorney when considering your options for enforcement of court orders. Attorney Scott Family Law, CFLS, has been practicing in San Diego County for over 34 years. Mr. Scott has extensive experience enforcing court orders. Please contact The Law Office of Scott Family Law at 858-974-4900 to set up a consultation appointment with Mr. Scott.

[1] “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”

Cal. Jury Instr.–Crim. 2.90, Cal. Jury Instr.–Crim. 2.90

[2] Cal. Jury Instr.–Civ. 2.60.