The Interplay Of Statutes On Parental Rights-11
THE INTERPLAY OF STATUTES ON PARENTAL RIGHTS, RESPONSIBILITIES, AND PARENT/CHILD CONTACT
A. When Is a Parent in Contempt?
Powers of the Court
(a) Every court shall have the power to do all of the following:
(1) To preserve and enforce order in its immediate presence.
(2) To enforce order in the proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority.
(3) To provide for the orderly conduct of proceedings before it, or its officers.
(4) To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.
(5) To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.
(6) To compel the attendance of persons to testify in an action or proceeding pending therein, in the cases and manner provided in this code.
(7) To administer oaths in an action or proceeding pending therein, and in all other cases where it may be necessary in the exercise of its powers and duties.
(8) To amend and control its process and orders so as to make them conform to law and justice.
(b) Notwithstanding Section 1211 or any other law, if an order of contempt is made affecting an attorney, his or her agent, investigator, or any person acting under the attorney’s direction, in the preparation and conduct of any action or proceeding, the execution of any sentence shall be stayed pending the filing within three judicial days of a petition for extraordinary relief testing the lawfulness of the court’s order, the violation of which is the basis of the contempt except for the conduct as may be proscribed by subdivision (b) of Section 6068 of the Business and Professions Code, relating to an attorney’s duty to maintain respect due to the courts and judicial officers.
(c) Notwithstanding Section 1211 or any other law, if an order of contempt is made affecting a public safety employee acting within the scope of employment for reason of the employee’s failure to comply with a duly issued subpoena or subpoena duces tecum, the execution of any sentence shall be stayed pending the filing within three judicial days of a petition for extraordinary relief testing the lawfulness of the court’s order, a violation of which is the basis for the contempt.
As used in this subdivision, “public safety employee” includes any peace officer, firefighter, paramedic, or any other employee of a public law enforcement agency whose duty is either to maintain official records or to analyze or present evidence for investigative or prosecutorial purposes.
(d) Notwithstanding Section 1211 or any other law, if an order of contempt is made affecting the victim of a sexual assault, where the contempt consists of refusing to testify concerning that sexual assault, the execution of any sentence shall be stayed pending the filing within three judicial days of a petition for extraordinary relief testing the lawfulness of the court’s order, a violation of which is the basis for the contempt.
As used in this subdivision, “sexual assault” means any act made punishable by Section 261, 262, 264.1, 285, 286, 288, 288a, or 289 of the Penal Code.
(e) Notwithstanding Section 1211 or any other law, if an order of contempt is made affecting the victim of domestic violence, where the contempt consists of refusing to testify concerning that domestic violence, the execution of any sentence shall be stayed pending the filing within three judicial days of a petition for extraordinary relief testing the lawfulness of the court’s order, a violation of which is the basis for the contempt.
As used in this subdivision, the term “domestic violence” means “domestic violence” as defined in Section 6211 of the Family Code.
(f) Notwithstanding Section 1211 or any other provision of law, no order of contempt shall be made affecting a county government or any member of its governing body acting pursuant to its constitutional or statutory authority unless the court finds, based on a review of evidence presented at a hearing conducted for this purpose, that either of the following conditions exist:
(1) That the county has the resources necessary to comply with the order of the court.
(2) That the county has the authority, without recourse to voter approval or without incurring additional indebtedness, to generate the additional resources necessary to comply with the order of the court, that compliance with the order of the court will not expose the county, any member of its governing body, or any other county officer to liability for failure to perform other constitutional or statutory duties, and that compliance with the order of the court will not deprive the county of resources necessary for its reasonable support and maintenance Code of Civil Procedure §128
Acts and Omissions Constituting Contempt
(a) The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:
1. Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding;
2. A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding;
3. Misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial service;
4. Abuse of the process or proceedings of the court, or falsely pretending to act under authority of an order or process of the court;
5. Disobedience of any lawful judgment, order, or process of the court;
6. Rescuing any person or property in the custody of an officer by virtue of an order or process of such court;
7. Unlawfully detaining a witness, or party to an action while going to, remaining at, or returning from the court where the action is on the calendar for trial;
8. Any other unlawful interference with the process or proceedings of a court;
9. Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness;
10. When summoned as a juror in a court, neglecting to attend or serve as such, or improperly conversing with a party to an action, to be tried at such court, or with any other person, in relation to the merits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court;
11. Disobedience by an inferior tribunal, magistrate, or officer, of the lawful judgment, order, or process of a superior court, or proceeding in an action or special proceeding contrary to law, after such action or special proceeding is removed from the jurisdiction of such inferior tribunal, magistrate, or officer.
(b) No speech or publication reflecting upon or concerning any court or any officer thereof shall be treated or punished as a contempt of such court unless made in the immediate presence of such court while in session and in such a manner as to actually interfere with its proceedings.
(c) Notwithstanding Section 1211 or any other provision of law, if an order of contempt is made affecting an attorney, his agent, investigator, or any person acting under the attorney’s direction, in the preparation and conduct of any action or proceeding the execution of any sentence shall be stayed pending the filing within three judicial days of a petition for extraordinary relief testing the lawfulness of the court’s order, the violation of which is the basis of the contempt, except for such conduct as may be proscribed by subdivision (b) of Section 6068 of the Business and Professions Code, relating to an attorney’s duty to maintain respect due to the courts and judicial officers.
(d) Notwithstanding Section 1211 or any other provision of law, if an order of contempt is made affecting a public safety employee acting within the scope of employment for reason of the employee’s failure to comply with a duly issued subpoena or subpoena duces tecum, the execution of any sentence shall be stayed pending the filing within three judicial days of a petition for extraordinary relief testing the lawfulness of the court’s order, a violation of which is the basis for the contempt.
As used in this subdivision, “public safety employee” includes any peace officer, firefighter, paramedic, or any other employee of a public law enforcement agency whose duty is either to maintain official records or to analyze or present evidence for investigative or prosecutorial purposes. Code of Civil Procedure §1209.
Orders for Necessities of Life
When a court of competent jurisdiction makes an order compelling a parent to furnish support or necessary food, clothing, shelter, medical attendance, or other remedial care for his or her child, proof that the order was made, filed, and served on the parent or proof that the parent was present in court at the time the order was pronounced and proof that the parent did not comply with the order is prima facie evidence of a contempt of court. Code of Civil Procedure §1209.5
When a Contempt Is Committed in the Presence of the Court
(a) When a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed.
When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.
(b) Filing of the Judicial Council form entitled “Order to Show Cause and Affidavit for Contempt (Family Law)” shall constitute compliance with this section. Code of Civil Procedure §1211
Penalty for Contempt
(a) Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he or she is guilty of the contempt, a fine may be imposed on him or her not exceeding one thousand dollars ($1,000), or he or she may be imprisoned not exceeding five days, or both. In addition, a person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.
(b) No party, who is in contempt of a court order or judgment in a dissolution of marriage or legal separation action, shall be permitted to enforce such an order or judgment, by way of execution or otherwise, either in the same action or by way of a separate action, against the other party. This restriction shall not affect nor apply to the enforcement of child or spousal support orders.
(c) In any court action in which a party is found in contempt of court for failure to comply with a court order pursuant to the Family Code, or Sections 11350 to 11476.1, inclusive, of the Welfare and Institutions Code, the court shall order the following:
(1) Upon a first finding of contempt, the court shall order the contemner to perform community service of up to 120 hours, or to be imprisoned up to 120 hours, for each count of contempt Code of Civil Procedure §1218)
(a) If the contempt alleged is for failure to pay child, family, or spousal support, each month for which payment has not been made in full may be alleged as a separate count of contempt and punishment imposed for each count proven.
(b) If the contempt alleged is the failure to pay child, family, or spousal support, the period of limitations for commencing a contempt action is three years from the date that the payment was due. If the action before the court is enforcement of another order under the Family Code, the period of limitations for commencing a contempt action is two years from the time that the alleged contempt occurred. Code of Civil Procedure §1218.5
Coercive Power of Contempt
(a) Except as provided in subdivisions (b) and (c), when the contempt consists of the omission to perform an act which is yet in the power of the person to perform, he or she may be imprisoned until he or she has performed it, and in that case the act shall be specified in the warrant of commitment.
(b) Notwithstanding any other law, no court may imprison or otherwise confine or place in custody the victim of a sexual assault for contempt when the contempt consists of refusing to testify concerning that sexual assault.
(c) In a finding of contempt for a victim of domestic violence who refuses to testify, the court shall not incarcerate the victim, but may require the victim to attend up to 72 hours of a domestic violence program for victims or require the victim to perform up to 72 hours of appropriate community service, provided that in a subsequent finding of contempt for refusing to testify arising out of the same case, the court shall have the option of incarceration pursuant to subdivision (a).
(d) As used in this section:
(1) “Sexual assault” means any act made punishable by Section 261, 262, 264.1, 285, 286, 288, 288a, or 289 of the Penal Code.
(2) “Domestic violence” means “domestic violence” as defined in Section 6211 of the Family Code. Code of Civil Procedure §1219
Agreements to Modify Subpoena
Any person who is subpoenaed to appear at a session of court, or at the trial of an issue therein, may, in lieu of appearance at the time specified in the subpoena, agree with the party at whose request the subpoena was issued to appear at another time or upon such notice as may be agreed upon. Any failure to appear pursuant to such agreement may be punished as a contempt by the court issuing the subpoena. The facts establishing or disproving such agreement and the failure to appear may be proved by an affidavit of any person having personal knowledge of the facts. Code of Civil Procedure §1985.1
Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court issuing the subpoena.
When the subpoena, in any such case, requires the attendance of the witness before an officer or commissioner out of court, it is the duty of the officer or commissioner to report any disobedience or refusal to be sworn or to answer a question or to subscribe an affidavit or deposition when required, to the court issuing the subpoena. The witness shall not be punished for any refusal to be sworn or to answer a question or to subscribe an affidavit or deposition, unless, after a hearing upon notice, the court orders the witness to be sworn, or to so answer or subscribe and then only for disobedience to the order.
Any judge, justice, or other officer mentioned in subdivision (c) of Section 1986, may report any disobedience or refusal to be sworn or to answer a question or to subscribe an affidavit or deposition when required to the superior court of the county in which attendance was required; and the court thereupon has power, upon notice, to order the witness to perform the omitted act, and any refusal or neglect to comply with the order may be punished as a contempt of court.
In lieu of the reporting of the refusal as hereinabove provided, the party seeking to obtain the deposition or to have the deposition or affidavit signed, at the time of the refusal may request the officer or commissioner to notify the witness that at a time stated, not less than five days nor more than 20 days from the date of the refusal, he or she will report the refusal of the witness to the court and that the party will, at that time, or as soon thereafter as he or she may be heard, apply to the court for an order directing the witness to be sworn, or to answer as a witness, or subscribe the deposition or affidavit, as the case may be, and that the witness is required to attend that session of the court.
The officer or commissioner shall enter in the record of the proceedings an exact transcription of the request made of him or her that he or she notify the witness that the party will apply for an order directing the witness to be sworn or to answer as a witness or subscribe the deposition or affidavit, and of his or her notice to the witness, and the transcription shall be attached to his or her report to the court of the refusal of the witness. The report shall be filed by the officer with the clerk of the court issuing the subpoena, and the witness shall attend that session of the court, and for failure or refusal to do so may be punished for contempt.
At the time so specified by the officer, or at a subsequent time to which the court may have continued the matter, if the officer has theretofore filed a report showing the refusal of the witness, the court shall hear the matter, and without further notice to the witness, may order the witness to be sworn or to answer as a witness or subscribe the deposition or affidavit, as the case may be, and may in the order specify the time and place at which compliance shall be made or to which the taking of the deposition is continued. Thereafter if the witness refuses to comply with the order he or she may be punished for contempt. Code of Civil Procedure §1991
Contempt to Not Appear at Deposition
Disobedience to a subpoena requiring attendance of a witness before an officer out of court in a deposition taken pursuant to Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4, or refusal to be sworn as a witness at that deposition, may be punished as contempt, as provided in paragraph (5) of subdivision (b) of Section 2023, without the necessity of a prior order of court directing compliance by the witness Code of Civil Procedure §1991.1
Family Code Orders Enforceable by Contempt
A judgment or order made or entered pursuant to this code may be enforced by the court by execution, the appointment of a receiver, or contempt, or by such other order as the court in its discretion determines from time to time to be necessary. Cal. Fam. Code §290
Reconciliation and Mitigation of Contempt
The reconciliation of the parties, whether conditional or unconditional, is an ameliorating factor to be considered by the court in considering a contempt of an existing court order. Cal. Fam. Code §2026
Contempt and Appearance Before Court
If a person personally served with a citation within this state as provided in Section 7880 fails without reasonable cause to appear and abide by the order of the court, or to bring the child before the court if so required in the citation, the failure constitutes a contempt of court. Cal. Fam. Code §7883
B. Remedies Realistically Available; How They Are Invoked.
Practical Methods for Recovering Children Wrongfully Removed from Other States and Countries.
1. Register a Certified Copy of the Court Order that Grants Custody to Your Client With the Local Court.
Register with the local court a certified copy of the court order that grants custody to your client. If the order is in a foreign language, obtain a certified translation. Attach to the custody order a caption page stating, “Custody Order of [name of country or state] Cal. Fam. Code §3416].” Attach to the foreign court order a Declaration Under the Uniform Child Custody Jurisdiction Act (Judicial Council Form MC-150). Once the decree is filed in a California court, it becomes enforceable here.
2. Include Proof that the Abducting Parent Had Notice of the Custody Proceeding.
This can be done by attaching the proof of service or a transcript of the hearing. If there is no court order establishing custody, ask an attorney in the court that has jurisdiction over custody to get an order and deliver it to you immediately. Both the custody order and the California court order can be served on the abducting parent at the same time.
3. File an Ex Parte Application for Immediate Turnover of the Child and Set an Order to Show Cause Hearing.
If you can show that giving notice would cause the child’s removal from the jurisdiction, the court will make an ex parte order. If you do this by ex parte application, submit a temporary restraining order (Judicial Council form 1285.05) containing the following wording: “Respondent is ordered, on receipt of this order, to turn over [child’s name] to Petitioner or to any Los Angeles County sheriff. Petitioner is awarded sole custody and possession of [child’s name] pending the hearing on the Order to Show Cause.” Be sure to check the box labeled “other” on the Order to Show Cause form and type in, “Enforcement of [name of country or state] order.” Indicate that you are making a special appearance. Both of these precautions will prevent the court from asserting custody jurisdiction.
4. Ask for Attorney Fees, Witness Costs, Travel and Other Expenses from the Court with Custody Jurisdiction.
Attach a declaration showing all fees, costs and projected expenses, as authorized by Cal. Fam. Code §§ 3408, 3411, 3416 and 3420.
Retrieving the child can be dangerous and requires the precautions. Obtain at least three certified copies of the turnover order. One should be delivered to the local law enforcement agency, one should be served on the abducting parent and the third should go to your client. Schedule a time for picking up the child when you can be sure the child is at home and law enforcement officers can be present. Make certain someone is guarding all the building’s exits.
Another method of getting a turnover order is to obtain a warrant in lieu of a writ of habeas corpus. Submit a proposed order with the application for the writ and the writ itself and schedule a hearing. Notice is not required if you can show good cause, such as factual evidence indicating that it is likely the parent will remove the child from the jurisdiction. The writ gives the local district attorney authority to pick up the child and deliver him or her to the court. Cal. Fam. Code §3130 et seq.
The order should include the following provisions:
• The district attorney shall take all actions necessary to locate and return the child and assist in the enforcement of the custody order in any appropriate civil or criminal proceedings. Cal. Fam. Code §3130 et seq.
• The district attorney is authorized to search the premises where the child is reasonably believed to be present.
• The district attorney may place the child with child protective services or foster care until the time of the hearing.
• State the punishment for violation of the warrant.
• The order is enforceable by any law enforcement officer in California.
This procedure has several advantages over an ex parte order. The district attorney’s office routinely handles child abductions and is more experienced in handling such matters than other law enforcement agencies. The hearing is prompt, and it is less likely a judge will conduct a full-blown custody hearing because its purpose is limited to releasing the child to the custodial parent.
A disadvantage to this procedure is that the child may be in the custody of law enforcement or child protective services for several days until the hearing. Many parents prefer requesting an ex parte order which may avoid this, but often judges require an evidentiary hearing before granting a turnover order.
At the hearing, you should establish the wrongful abduction and your client’s right to custody. The issues should be limited to whether there was a valid custody order in the other state or country and the abducting parent had notice and an opportunity to be heard at that custody hearing.
Regardless of which procedure you use, be prepared for the abducting parent’s attorney to claim the California court has jurisdiction over custody and to call for a full custody hearing. If the attorney can show your client abused the child or has placed the child in imminent danger, the court could take jurisdiction over custody and create costly delays in getting the child back
C. How to Ensure Visitation Rights and Exercise Joint Legal Custody.
Family Code §10100 states that it is the intent of the legislature that each Superior Court establish an “office of the friend of the court” to enforce custody and visitation orders. This provision is contingent on federal funding.
1. Contempt Proceedings.
Custody and Visitation Orders are enforceable by Contempt Proceedings. Moffat v. Moffat (1980) 27 Cal.3d 645, 165 Cal. Rptr. 877. In order to find a party in contempt there must be personal knowledge of the order, either by personal service on the party after entry of the Order or Judgment, or the party was present in the court when the order was orally announced.
Be wary of filing a contempt on the basis of frustration a visitation where the children are teenagers. In Coursey v. Superior Court (1987) 194 Cal.Appl.3d 147, the court overturned a contempt citation against a parent because of insufficient evidence, as a matter of law, that the parent had the ability to force a fourteen year old to visit the other parent.
Code of Civil Procedure §1218 sets for the penalties for violating any order made under the Family code. The person found to be in contempt must either perform 120 hours of community service or serve up to 120 hours in jail on the first violation. On a second contempt finding, the person in contempt could receive either the 120 hours in jail or community service, or both. On a third or subsequent contempt, the person found in contempt must serve up to 240 hours in prison, perform up to 240 hours of community service and pay an administrative fee.
2. Change of Custody Requests Based on the Other Parent’s Efforts to Frustrate Visitation.
If you represent a parent who is continually denied visitation rights, this may be sufficient change of circumstances to justify a change in custody to your client. See In re Marriage of Ciganovich (1976) 61 Cal. App. 3d 289, 132 Cal. Rptr. 261, In re Marriage of Wood (1983) 141 Cal. App. 3d 671, 190 Cal. Rptr. 469, and Catherine D. v. Dennis B. (1990) 220 Cal. App. 3d 922, 269 Cal. Rptr. 547.
3. Monetary Damages
Family Code §3028 permits the court to order monetary compensation for periods when a parent fails to assume the caretaker responsibility or when a parent has been thwarted by the other parent when attempting to exercise visitation or custody rights, pursuant to an order or agreement between the parties.
The compensation is limited to reasonable expenses incurred that result from the failure to exercise visitation or from the thwarting of visitation. These expenses may include the value of caretaker services but are not limited to them. The motion may only be brought if there is a minimum of $100.00 of expenses, or at least three occurrences of the thwarting of efforts to exercise custody or visitation rights within six months prior to filing.
The usefulness of this provision is doubtful. Many parents end of taking care of the children themselves or arranging for a friend to do so at no cost when the other parent fails to exercise their visitation. Thus there are no “expenses incurred”.
In addition, the cost of bringing such a motion, if one hires an attorney, usually will exceed the expected recovery. Although the statute does provide for attorney’s fees, it is based on a showing of the non-prevailing party’s ability to pay.