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Contempt of court

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TAH_235

Guest
What is the name of your state? California

Hi. This is a question for my boyfriend. His ex has been denying him his visitation (she was a total no-show yesterday and hasn't returned phone calls) and it was pointed out here by Stealth and Ober, I believe, that he HAS to file contempt of court (one of the reasons being that he's fighting a move-away request by mom and can't let the courts think he doesn't care to see the kids when designated). My boyfriend's fear is that mom will be put in jail with all of her denials of his visitation (she said she won't let him have his kids this weekend even though it is his holiday weekend with them). He says he doesn't want to interfere with the kids strong bond with their mother, and if the kids are totally taken away from her then that will happen. Can you file for contempt but with a stipulation that you are not asking for her to be jailed or to lose her custody? He needs to do it to prove mom can't move away with the kids because she'll never let him see them if they live 500 miles away. What generally happens when shown to be in contempt of court?
Thanks.
 


tcpmp

Member
This is my opinion of what might happen. The chancing of her going to jail are pretty slim, although it could still happen. If your boyfriend does file contempt let us know what happens. The contempt and moving are two different fights. The court will look at whether or not the father is trying to see his kids and if he has a good living environment. Since the distance between where he live and where she lives is so great visitation will probably be broken up into longer chunks of time. If the mother is granted to ability to move the judge might make a stipulation about transportation and a meeting place. I've heard of meeting in the middle, in a public place like a mall or park for exchange of custody. Another option is that the receiving parent pay for transportation. That means that when your boyfreind has visitation he has to provide the transportation to pick up his children, then the mother has to provide the transportation back to her place. I like the second option better. It places the responsiblity for transportation on the right person.
 
R

runnerone

Guest
So what exactly is the point of contempt of court if there are only "slim" chances repercussions occur?
 
O

oneandonly

Guest
Excellent question runner~

runnerone said:
So what exactly is the point of contempt of court if there are only "slim" chances repercussions occur?
You might want to ask the CA attorney on here, IAAL that question and ask if he has ever seen custody change or repercussions of any kind for contempt on these issues....
The NCP's that I know of in CA that won custody (back)...it took more than contempt, ie, abuse, neglect, homelessness, etc..... to accomplish this.
 

I AM ALWAYS LIABLE

Senior Member
TAH_235 said:
What is the name of your state? California

Hi. This is a question for my boyfriend. His ex has been denying him his visitation (she was a total no-show yesterday and hasn't returned phone calls) and it was pointed out here by Stealth and Ober, I believe, that he HAS to file contempt of court (one of the reasons being that he's fighting a move-away request by mom and can't let the courts think he doesn't care to see the kids when designated). My boyfriend's fear is that mom will be put in jail with all of her denials of his visitation (she said she won't let him have his kids this weekend even though it is his holiday weekend with them). He says he doesn't want to interfere with the kids strong bond with their mother, and if the kids are totally taken away from her then that will happen. Can you file for contempt but with a stipulation that you are not asking for her to be jailed or to lose her custody? He needs to do it to prove mom can't move away with the kids because she'll never let him see them if they live 500 miles away. What generally happens when shown to be in contempt of court?
Thanks.


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My response:

Deliberate sabotage" of visitation rights no defense:

Contempt, custody modification or perhaps a spousal support modification may be appropriate remedies where a noncustodial parent's exercise of visitation is obstructed. But not even a deliberate sabotage of the obligor's visitation rights will justify withholding the payment of child support. [Cooper v. O'Rourke (1995) 32 Cal.App.4th 243, 246, 38 Cal.Rptr.2d 444, 445--trial court erroneously terminated ongoing child support based on custodial mother's deliberate interference with father's visitation]

There is no emotional distress remedy against parent "interfering" with visitation:
A parent's "interference" with the other parent's visitation (as opposed to outright child "abduction") must be redressed in the family law court (by contempt, custody modification, spousal support modification or termination, etc. It is not remediable by an emotional distress damages suit. [See Marriage of Segel (1986) 179 Cal.App.3d 602, 609, 224 Cal.Rptr. 591, 595]

Authorized remedies:
The Code supports several statutory remedies as against a custodial parent who interferes with the other parent's visitation rights (see generally, Moffat v. Moffat, supra, 27 Cal.3d at 652, 165 Cal.Rptr. at 881; Marriage of Damico (1994) 7 Cal.4th 673, 679, 29 Cal.Rptr.2d 787, 789):

1. Contempt:
Imprisoning or fining the custodial parent for contempt . . . provided he or she had the ability to comply with the visitation order (i.e., sufficient control over the child to compel the child to visit). [Moffat v. Moffat, supra; Rosin v. Super.Ct. (Rosin) (1960) 181 Cal.App.2d 486, 499-500, 5 Cal.Rptr. 421, 428-429]

2. Spousal support modification:
Terminating or reducing spousal support payments to the custodial parent. [Moffat v. Moffat, supra; Clarke v. Clarke (1970) 4 Cal.App.3d 583, 589, 84 Cal.Rptr. 393, 396; see Marriage of Condon (1998) 62 Cal.App.4th 533, 548, 73 Cal.Rptr.2d 33, 43, fn. 10 (spousal support modification/termination as remedy to enforce nonmoving parent's custody/visitation rights in international move-away situation]

3. Bond:
Requiring the custodial parent to post a bond to ensure compliance with the visitation order. [Moffat v. Moffat, supra; Marriage of Ciganovich (1976) 61 Cal.App.3d 289, 293, 132 Cal.Rptr. 261, 264; see Walker v. Super.Ct. (Walker) (1966) 246 Cal.App.2d 749, 752, 55 Cal.Rptr. 114, 115-116 (order allowing removal of child to Canada only on posting bond); Marriage of Condon, supra, 62 Cal.App.4th at 562, 73 Cal.Rptr.2d at 52 (order conditioning relocation of child to Australia on posting bond within moving parent's means]

4. Injunction:
Proceedings to modify the custody order to include a move-away injunction. [Moffat v. Moffat, supra; see Cassady v. Signorelli (1996) 49 Cal.App.4th 55, 57, 56 Cal.Rptr.2d 545, 546 -- Mother (primary caretaker) enjoined from relocating with child to Florida upon evidence showing move-away was motivated to frustrate Father's relationship with child; Gudelj v. Gudelj (1953) 41 Cal.2d 202, 209, 259 P.2d 656, 660--injunction issued where evidence showed Mother threatened infringement of Father's visitation rights by moving and changing child's name]

5. Change of custody:
Modification proceedings to change custody. [Moffat v. Moffat, supra; Burchard v. Garay (1986) 42 Cal.3d 531, 540, 229 Cal.Rptr. 800, 806, fn. 11; Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 932, 269 Cal.Rptr. 547, 553-554; see also Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 30 Cal.Rptr.2d 893, 902--

"It is common knowledge among family law practitioners that the quickest way for a parent to lose primary physical custody is for that parent to obstruct the visitation rights of the other parent"


6. Financial compensation:
A parent "thwarted" by the other parent when attempting to exercise visitation (or custody) rights may file an OSC or noticed motion for reimbursement of the consequential "reasonable expenses." [Ca Fam § 3028(a) & (c)]

(a) Compensable expenses:
The reimbursable amount is limited to the "reasonable expenses" incurred by the aggrieved parent "for or on behalf of a child" resulting from the other parent's thwarting his or her efforts to exercise visitation (or custody) rights. [Ca Fam § 3028(a)] (Presumably, this would include investigator fees to locate the custodial parent and child, related travel expenses, costs for phone calls, etc.)

In addition, attorney fees "shall be awarded" to the prevailing party upon a showing of the nonprevailing party's ability to pay. [Ca Fam § 3028(d)]

(b) Minimum expenses or occurrences prerequisite:
As a condition to requesting § 3028 reimbursement, there must be a minimum of $100 expenses incurred or at least three occurrences of the thwarting of efforts to exercise visitation (or custody) rights within the six-month period preceding filing of the motion or OSC. [Ca Fam § 3028(c)]

IAAL
 

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