California courts have the discretion to enforce their decisions so that all the parties involved can adhere to these orders. Unfortunately, an ex-spouse or your child’s parent can decide not to abide by these court instructions, whether it is to allow visitation, pay child support, or spousal support, which can be frustrating. In these situations, order enforcement laws can force them to obey the original court decision or face incarceration. At the San Diego Divorce Attorney, we are here to help you take action and answer any questions regarding enforcement of family law court orders.
Understanding California Court Orders
A court order is any direction or decision issued by the court or judge that:
- Needs a person to engage in a particular action like payment of child support
- Forbids certain persons from taking particular action like a protective order, which prohibits the restrained individual from contacting the protected person in any way.
- Schedules court dates when a party involved is expected to show up in court
- Lawfully determines subjects like the relationship between parties in divorces, legal separations, or marriages.
When an individual fails to adhere to these legal documents issued by a court of law, you can force them to comply with the court orders through order enforcement. Enforcement, in this case, refers to proceedings brought to force an individual to comply with court orders. With this in mind, order enforcement in the context of family law, therefore, refers to a legal document, direction, or decision issued by a judge, forcing a person or an entity to abide by the law.
The main benefit of a court order is the enforcement part because the parties involved understand the possible consequences associated with this proceeding. In family law, the punishments meted on the parties for not complying with the order conditions are not punished directly. Instead, it is their wrongful acts that are punished. For instance, if an ex-spouse or partner fails to pay child support as instructed by the court, a wage assignment is forwarded to the employer, who starts to withhold the amount of child support.
Note that if you are the person with whom a court order has been issued and feel it’s unfair, you can request modifications. However, until then, you must abide by the terms of the court’s decision.
Orders the Court Will Enforce
In San Diego, a court can enforce orders dealing with several issues. These include:
Child Custody and Visitation Orders
Child custody is outlined as the rights or obligations between parents regarding caring for their child. On the other hand, Visitation addresses the issue of how each parent will spend time with their kid. A court order is issued when the two parents can’t agree on either visitation or custody.
California allows either parent to have custody or share custody of the child. Even if it is the judge with the final say on the parent to have custody or on visitation, they usually approve the agreement or parenting plan developed by the parents. However, if the parents cannot agree on a parenting plan, the matter goes for a court hearing or involves a mediator from the court services, after which the judge gives direction.
There are two forms of custody; legal and physical custody. Legal custody means a parent can make health, education, or welfare decisions for the child, while physical custody means the person who will live with the child. Remember, both visitation and legal custody can be joint, but mostly, courts will issue joint legal custody and not physical or legal custody.
Visitation or time-sharing is a plan guiding on how parents will spend time with the child. Visitation orders issued by the court differ greatly, but they are mainly based on what’s best for the child. The following are some of the visitation orders a judge can issue:
Visitation based on schedule — The order is issued to prevent conflicts by detailing each parent’s dates and time spent with the kid(s). The parents work together with the court to create a schedule that includes holidays, special days, and vacations.
Reasonable visitation — This form of visitation order allows both parents to develop their schedule without court interference. However, this open-ended visitation only works when both parents are on good terms and in communication. Otherwise, children might suffer the most if this order is issued when parents disagree.
Supervised visitation — When the child in question is not familiar or has not seen the parent they will be spending time with for a long time, the court issues supervised visitation orders. The purpose of supervision is to ensure the safety and comfort of the child.
No visitation — This kind of order is issued where the parent can cause physical or emotional harm to the child, and it’s in the child’s interest that the parent doesn’t contact.
If a visitation or custody order exists, but the other party disregards the terms provided, you can go to court to seek enforcement. At the San Diego Divorce Attorney, we recommend that you keep off any contact with your child when it’s not your time to spend time with them and adhere to all the conditions set by the court.
Restraining Order (RO)
A restraining or protective order as per the California legal system is issued by the court primarily in domestic violence cases to prevent a particular person from harassing, threatening, or stalking someone else. The person being protected by the order is the protected person, while the abuser is the restrained individual. If you are the protected party, in this case, the court can give various directions to the restrained party. They may be ordered to keep a particular distance from you, your children, work, or home, and if you live with the restrained party, the court can direct the person to move out.
A temporary restraining order can last for up to six months, while a permanent order stays active for no more than five years. Based on the terms imposed by the court, the restrained party should not violate them until the duration expires. If the individual violates these terms, it means your life and that of your children are in danger; thus, the order must be enforced.
Under California PC 273.6, violation of RO is a misdemeanor offense whose conviction attracts a colossal fine of $1,000 and jail incarceration for up to twelve months. Sometimes, a violation of a RO can be charged as a wobbler attracting even harsher penalties. Because the law provides enforcement of this order, do not hesitate to report to the San Diego law enforcement authorities about the violation for the victim to be arrested and charged.
When you call the police, make sure you share with them a copy of the order. If the restrained party is present and claims not to have been served with the orders, ask the police to serve the person with the legal document. However, if the restrained individual was aware of the order and chose to violate it, the person will face the penalties mentioned above.
Further, you can strengthen order enforcement by collecting evidence to demonstrate that the directions given by the court were violated. To gather evidence, you can do the following:
- Jot down the events that took place, when, where, and if any witnesses were present
- Put down the personal contacts of the witnesses and their statements
- If there is any threatening voice message, make a copy
- Print out emails, text messages, or social media posts from the restrained party that you feel were threatening.
- If you sustained any bodily harm, keep medical records to prove the same
Also, explain that you want to proceed with the matter by filing criminal charges. Here, you might need the help of the DA or an attorney to file the charges. Alternatively, you can take civil action by filing a civil contempt action requesting the court to find the restrained party in contempt of court for disregarding a direction by the court.
Child Support Order
When marital responsibilities end after a divorce or legal separation, parental responsibilities do not cease for both parents. California FC 4053 states that both parents of a child should provide support insofar as they can. Law courts issue child support judgments to ensure you and your ex-spouse continue providing financial support and that the kid obtains reasonable care from both parents. The arrangement focuses on the kid’s best interest while at the same time ensuring the parents fulfill their duties.
The Issue with Child Support Enforcement
Child support orders are often enforced through wage garnishment unless you and the other parent agree on an alternative payment method. Unfortunately, many parents can pay child support but fail to do so. The statutes ensure children live comfortably even after the parents have separated, but people have found ways to abuse and evade them. Below are some of the instances of how enforcement issues come about:
- The parent with child custody might deny the other parent visitation to increase child support. This action is called gatekeeping.
- The visiting parent might show up not to spend time with the child but to avoid child support.
- Both parents might avoid employment or remain underemployed to keep the amount of child support payments low. The custodial parent can do so to increase the number of payments by the other parent. The non-custodial parent might take this action to reduce the amount of child support they should be paying.
- Any of the parents might lie about their income during income declaration to estimate child support payment in their favor.
Forms of Child Support Order Enforcement
When the other parent fails to make your child support payments, and you report it, the Child Support Services Department will forward the matter to the crediting reporting bureaus. Also, when a parent owes 2,500 dollars or above in child support payment, the United States Department of State can deny your passport renewal or application until you clear any arrears.
Other steps that could be taken to force the other parent to pay child support include the interception and wage assignment of:
- Tax refunds
- Workers compensation benefits
- Unemployment benefits to satisfy due child support payments
Alternatively, the Franchise Tax Board can seize personal property, unoccupied land, or even bank accounts. Parents who fail to honor their child’s support payments might also be subject to professional and driver’s license suspension.
Earlier, it was mentioned that if you feel that the payments calculated by the court are unfair, you can request a modification. However, these payments cannot be modified retrospectively to affect payments due before the modification.
Partner Support Orders
Also known as alimony, the court issued partner support orders to temporarily support the other spouse after divorce to continue re-adjusting to the new life. Remember, when marriage begins, it doesn’t only mark the beginning of a relationship union; it also marks the start of a fiscal union. This financial union ends after divorce, although you or the other partner can be entitled to spousal support for a particular duration after ending the marriage.
Although the support is not an automatic right for either of the parents, the judge gives these orders in particular circumstances to ensure both spouses live under similar living standards after separation, as they used to when they were together. If your ex-spouse fails to honor these payments after the court has granted a spousal support order, you can enforce the orders to force the former spouse to make the payments through wage garnishment.
Exempt Property in Money Judgment Enforcement
According to California Family Code 291, a money judgment, including partner, child, or family support, is enforceable until fully satisfied. However, despite child support agencies obtaining assistance from the Franchise Tax Board to levy property in the event of support non-payment, some property is exempt from money judgment enforcement. The exemptions are outlined under the Title 9 of the California Code of Civil Procedure. However, the last say is with the court because it can decide to uphold the exemptions or dip into the exempt property to satisfy the judgment.
The court’s decision must balance between the creditor and debtor’s needs and other facts surrounding the case. When establishing the debtor’s needs, the court should also consider their property, spouse, and dependents’ property included.
Remember, the exemptions outlined under title 9 are only applicable to natural individuals. Further, because these exemptions are elective, when you, as a debtor, pick one category of exemptions, you forgo other exemptions. Therefore, if you pick exemptions under the Judgment Enforcement Law Sec 703.140(b), you will relinquish other exemptions available in the law.
The Dollar Cap on these exemptions is adjusted every three years based on the current consumer price index at the date of adjustment. The Judicial Council of California is entrusted to perform these adjustments, but at times, the legislature can adjust the limits through a vote. The limits listed under section 703.140(b) include:
- The interest in the real estate or personal property you or your dependants use as a residence should not surpass $25,575.
- Motor vehicle interest no more than $5,100
- No more than $650 interest on movable property like apparel or household furnishing
- Up to $7,625 interest on tools of the trade
- You or your dependents’ professionally prescribed health aid
If you have any benefits, you must claim them within ten days after receiving the notice of levy. Remember, the creditor might try to contest the exemptions, but it’s up to the court to decide whether to grant an exemption to the order or judgment enforcement.
Meaning of Contempt of Court
California rarely enforces court orders by contempt proceedings, although it is a valid option you can use when someone fails to abide by court orders. To prove contempt of court, you must present evidence showing that order exists. Additionally, you must demonstrate that the individuals involved did have knowledge about the existence of the order and understood its content. Finally, you must prove that the actions by the other party to violate the order were deliberate.
When you accuse someone of contempt of court, the charges become criminal and may result in incarceration or hefty fines upon conviction. Some of the court orders punishable by contempt of court are:
- Failure to comply with spousal support court directions
- Refusal to pay legal fees
- Not following orders requiring you to find a job to start paying child support
- Not obeying wage assignment on the salaries of employees
- Violation of a protective order
- Violation of child visitation
Find a Family Law Attorney Near Me
In family law, a litigation cycle is complete not only when a court gives directions or orders but also when they put measures to ensure these orders are complied with. As a litigant, you will easily comply with the different orders like visitation, child support, and spousal support. However, the other party might fail to abide by the court’s decision, making it necessary to hire an experienced family law attorney to help you with the order enforcement process.
At the San Diego Divorce Attorney, we understand most violations of family court judgments occur when parents refuse to pay child support or be late to pick up a child during visitation. If you are a parent who needs assistance in enforcing any of the family law court orders above, do not hesitate to call us at 858-529-5150 today.