Motion for Contempt / Enforcement — Custody & Support (California)

IMPORTANT — THIS IS A PREPARATION GUIDE, NOT THE OFFICIAL COURT FORM.
California requires mandatory Judicial Council form FL-410 (Order to Show Cause and
Affidavit for Contempt), supported by FL-411 (Affidavit of Facts Constituting
Contempt — financial) and/or FL-412 (Affidavit — custody and visitation). Transfer the
content prepared here onto those official forms before filing. Forms: https://courts.ca.gov.

ORDER TO SHOW CAUSE AND AFFIDAVIT FOR CONTEMPT — CUSTODY AND SUPPORT ENFORCEMENT

Superior Court of California — Family Law Division

I. COURT CAPTION AND CASE INFORMATION

SUPERIOR COURT OF CALIFORNIA
COUNTY OF [________________________________]

Case No.: [________________________________] (same number as the underlying order)

ORDER TO SHOW CAUSE AND AFFIDAVIT FOR CONTEMPT (Judicial Council Form FL-410; Cal. Code Civ. Proc. §§ 1209–1218; Cal. Fam. Code § 290)

HEARING INFORMATION (assigned by clerk on issuance of OSC):

II. NOTICE TO CITED PARTY — READ CAREFULLY

TO [________________________________] (Cited Party), AND TO YOUR ATTORNEY OF RECORD, IF ANY:

YOU ARE ORDERED TO APPEAR in this Court at the date, time, and department set above to show cause, if any there be, why you should not be held in contempt of court for willfully disobeying the order(s) described in this affidavit.

A CONTEMPT PROCEEDING IS CRIMINAL IN NATURE. The possible penalties include a jail sentence, a fine, community service, and an order to pay the other party's attorney's fees and costs. You have these rights:

• You have the right to be represented by an attorney at every stage of this proceeding. If you cannot afford an attorney and a jail sentence is a possible result, you may ask the Court to appoint an attorney to represent you free of charge.
• You have the right to remain silent and not to be compelled to testify against yourself.
• You are presumed innocent. The moving party must prove every element of each count of contempt beyond a reasonable doubt.
• You have the right to confront and cross-examine witnesses and to present a defense, including the defense that you were unable to comply with the order.

IF YOU FAIL TO APPEAR, the Court may issue a warrant for your arrest.

III. JURISDICTION, VENUE, AND PARTIES

1. This Court has continuing, exclusive jurisdiction over the parties and the subject matter of this proceeding because it issued the underlying order(s) described below. (Cal. Fam. Code § 290; UCCJEA, Cal. Fam. Code §§ 3400 et seq.; UIFSA, Cal. Fam. Code §§ 5700.101 et seq.)

2. Venue is proper in [________________________________] County as the court of continuing jurisdiction.

3. Moving Party (Citor) is [________________________________], the ☐ Petitioner ☐ Respondent in this action, residing at [________________________________].

4. Cited Party (Citee) is [________________________________], the ☐ Petitioner ☐ Respondent in this action, whose last known residence is [________________________________].

5. The minor child(ren) subject to the order(s):

IV. THE ORDER(S) AT ISSUE

1. On [__/__/____], this Court entered a [☐ Judgment of Dissolution ☐ Custody/Visitation Order ☐ Child Support Order ☐ Spousal Support Order ☐ Stipulated Order ☐ Other: __________] (the "Order"). A true and correct file-stamped copy is attached as Exhibit A and incorporated by reference.

2. The Order is clear, specific, and unequivocal as to the obligation(s) alleged to have been violated. The operative provisions are quoted verbatim below:

"[QUOTE THE EXACT ORDERED LANGUAGE — e.g., 'Respondent shall pay child support of $______ per month, payable on the 1st of each month, commencing __________, through the State Disbursement Unit.' / 'The parties shall share parenting time as follows: ______.']"

3. Knowledge of the Order. The Cited Party has actual knowledge of the Order because (check all that apply):

☐ The Cited Party was present in open court when the Order was pronounced on [__/__/____].
☐ The Cited Party signed the stipulation that became the Order.
☐ The Cited Party was personally served with the Order on [__/__/____].
☐ The Cited Party was represented by counsel of record, [________________________________], when the Order was entered.
☐ The Cited Party has previously acted consistently with knowledge of the Order (e.g., partial payment, prior compliance).

4. The Order has not been stayed, vacated, modified, or set aside, and remains in full force and effect.

V. SPECIFIC ACTS OF CONTEMPT (CHARGING ALLEGATIONS)

The Cited Party, having knowledge of the Order and the ability to comply, has willfully and contumaciously violated the Order as set forth below. Each separately numbered violation is charged as a separate count, and a separate finding and sanction is requested as to each.

A. ☐ Failure to Pay Child Support (each month a separate count — CCP § 1218.5(a))

Total child-support arrearage as of [__/__/____]: $[____________________]

B. ☐ Failure to Pay Spousal Support (each month a separate count — CCP § 1218.5(a))

Total spousal-support arrearage as of [__/__/____]: $[____________________]

C. ☐ Denial of Court-Ordered Custody / Parenting Time (FL-412)

• Count [__]: On [__/__/____], in violation of paragraph [__] of the Order, the Cited Party failed and refused to deliver the child(ren) to the Moving Party for court-ordered parenting time scheduled from [TIME] to [TIME] at [LOCATION]. The Cited Party [describe specific act: refused exchange / withheld the child / failed to return the child / removed the child from the area].
• Count [__]: On [__/__/____], [describe the second occurrence].
• Count [__]: On [__/__/____], [describe the third occurrence].

D. ☐ Other Violation of the Order

• Count [__]: [Describe the act, the date, and the specific provision violated — e.g., failure to maintain health insurance, failure to reimburse uninsured medical costs, failure to transfer property under Cal. Fam. Code § 290.]

Statute of limitations note (CCP § 1218.5(b)): Each support count is timely if commenced within three years of the date the payment was due. Counts for enforcement of other Family Code orders are timely within two years of the alleged contempt.

VI. LEGAL STANDARD

A. Elements (each proven beyond a reasonable doubt)

To establish contempt under Cal. Code Civ. Proc. §§ 1209(a)(5) and 1218, the Moving Party must prove, beyond a reasonable doubt, each of the following as to each count:

☐ (1) A valid order. A lawful order of a court of competent jurisdiction, clear, specific, and unequivocal as to the conduct required or prohibited.
☐ (2) Knowledge. The Cited Party had actual knowledge of the order.
☐ (3) Ability to comply. The Cited Party had the ability to comply at the time of each violation.
☐ (4) Willful failure. The Cited Party willfully disobeyed the order.

California family-law contempt is quasi-criminal. Each element must be established beyond a reasonable doubt, the Cited Party is presumed innocent, and the procedural protections of a criminal defendant apply. (In re Witherspoon, 162 Cal. App. 4th 522 (2008); In re Coleman, 12 Cal. 3d 568 (1974).)

B. Civil (Coercive) vs. Criminal (Punitive) Contempt

• Civil / coercive contempt is remedial. Its purpose is to coerce future compliance and compensate the moving party. Coercive incarceration must be accompanied by a purge condition the citee is presently able to satisfy — the citee "carries the keys of the prison in his own pocket" (Cal. Code Civ. Proc. § 1219; Hicks v. Feiock, 485 U.S. 624, 631–32 (1988)).
• Criminal / punitive contempt imposes a fixed, determinate sanction (e.g., a flat 5-day jail term per count under § 1218) to vindicate the court's authority, with no purge. (Hicks v. Feiock, supra.)

Because California treats all family-law contempt as quasi-criminal, the beyond-a-reasonable-doubt standard governs regardless of which remedy is sought.

C. Ability to Comply / Ability to Pay — Turner v. Rogers

For monetary obligations, inability to comply (or inability to pay) is an affirmative defense the Cited Party bears the burden to raise (Cal. Code Civ. Proc. § 1209.5 establishes a presumption of ability where the obligor was previously ordered to pay; the citee may rebut it). Consistent with Turner v. Rogers, 564 U.S. 431 (2011), where incarceration is a possible sanction the Court should ensure: (a) the Cited Party has notice that ability to comply is the critical issue; (b) the Cited Party has an opportunity to submit a financial disclosure (Income and Expense Declaration, FL-150); (c) the Cited Party has a meaningful opportunity to be heard on ability; and (d) the Court makes express findings on knowledge, ability, and willfulness before imposing any jail sanction.

VII. RELIEF REQUESTED

WHEREFORE, the Moving Party respectfully requests that the Court:

1. Issue this Order to Show Cause (FL-410) directing the Cited Party to appear and show cause why the Cited Party should not be adjudged in contempt as to each count above;

2. Adjudge the Cited Party in contempt as to each count proven beyond a reasonable doubt;

3. Enter a money judgment for the total arrearage of $[____________________] in unpaid [☐ child support ☐ spousal support], plus statutory interest at 10% per annum (Cal. Code Civ. Proc. § 685.010);

4. Issue an Earnings Assignment Order for support (wage/income withholding) under Cal. Fam. Code §§ 5230–5238 for ongoing support and the arrearage;

5. Order make-up parenting time to compensate the Moving Party for parenting time wrongfully denied, as follows: [describe schedule — dates, duration, exchange details];

6. Award attorney's fees and costs incurred in bringing this proceeding under Cal. Fam. Code § 290, §§ 2030–2032, and § 3557 (and, on a finding of contempt, Cal. Code Civ. Proc. § 1218(a)) in the amount of $[____________], or as proven;

7. Impose coercive sanctions — confinement in the county jail and/or community service of up to 5 days and a fine of up to $1,000 per count (Cal. Code Civ. Proc. § 1218(a); Cal. Penal Code § 19.2) — and/or, for civil/coercive contempt, confinement under Cal. Code Civ. Proc. § 1219 until the Cited Party purges the contempt by satisfying the purge conditions in the Proposed Order below;

8. Refer the matter for license suspension for support delinquency under Cal. Fam. Code § 17520 and Cal. Bus. & Prof. Code § 31, where applicable;

9. Grant such other and further relief as the Court deems just and proper.

VIII. AFFIDAVIT (DECLARATION) OF MOVING PARTY

I, [________________________________], declare:

1. I am the Moving Party (Citor). I have personal knowledge of the facts stated here and could competently testify to them.

2. The Order described in Section IV is a true and correct order of this Court, has not been stayed, modified, or vacated, and remains in effect.

3. The Cited Party has actual knowledge of the Order as stated in Section IV.3.

4. The specific violations charged in Section V occurred on the dates and in the manner alleged. I attach supporting documentation: [☐ certified payment/arrearage record ☐ State Disbursement Unit ledger ☐ bank records ☐ text/email communications ☐ parenting-time log].

5. To the best of my knowledge, the Cited Party had the ability to comply at the time of each violation. The basis for my belief is: [describe — employment, income, assets, lifestyle expenditures, partial compliance, voluntary unemployment, statements made].

6. As a result of the noncompliance, I have suffered: [describe — financial hardship, lost parenting time, costs incurred].

7. I made these good-faith efforts to obtain compliance before filing: [describe — written demand on [__/__/____], meet-and-confer, prior enforcement].

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on [__/__/____] at [________________________________], California.

_________________________________
[________________________________], Moving Party (Citor)

_________________________________
[________________________________], Attorney for Moving Party
State Bar No. [____________]
[Firm Name / Address / Telephone / Email]

IX. [PROPOSED] ORDER ON CONTEMPT (with Purge)

After hearing, and upon proof beyond a reasonable doubt, the Court FINDS and ORDERS:

1. The Cited Party had actual knowledge of the Order, had the ability to comply at the time of each violation, and willfully disobeyed the Order as to Counts [____________].

2. The Cited Party is adjudged in contempt as to each count above.

3. Money judgment is entered against the Cited Party and in favor of the Moving Party for $[____________________] in support arrears, plus statutory interest at 10% per annum.

4. An Earnings Assignment Order shall issue under Cal. Fam. Code §§ 5230–5238.

5. Make-up parenting time is ordered as follows: [________________________________].

6. The Cited Party shall pay the Moving Party's attorney's fees and costs of $[____________].

7. Sanction. The Cited Party is sentenced to [____] days in the [________________] County Jail and/or [____] hours of community service per count, ☐ suspended on condition that the Cited Party purge the contempt as follows:

☐ Monetary purge: Pay $[____________] toward the arrearage by [__/__/____] (the Court having found this amount within the Cited Party's present ability to pay).
☐ Behavioral purge: Comply fully with the [parenting-time / support] provisions of the Order for [____] consecutive [weeks/months].
☐ Other purge: [________________________________].

8. ☐ The matter is referred for license suspension under Cal. Fam. Code § 17520.

Date: [__/__/____]

_________________________________
JUDICIAL OFFICER OF THE SUPERIOR COURT

X. PROOF OF PERSONAL SERVICE

I, [________________________________], declare that I am over 18 and not a party to this action. On [__/__/____] at [TIME], at [LOCATION], I personally served a true copy of the Order to Show Cause and Affidavit for Contempt (FL-410), together with [FL-411 / FL-412] and all exhibits, on:

[________________________________] (Cited Party)

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on [__/__/____] at [________________________________], California.

_________________________________
[Printed Name and Signature of Server]
[Registration No., if a registered process server: ____________]

XI. EXHIBITS

• Exhibit A: Certified/file-stamped copy of the underlying Order dated [__/__/____]
• Exhibit B: Proof establishing the Cited Party's knowledge of the Order
• Exhibit C: State Disbursement Unit ledger / certified payment history (FL-420/FL-421)
• Exhibit D: Evidence of ability to pay/comply (paystubs, bank records, asset records)
• Exhibit E: Communications between the parties regarding the violations
• Exhibit F: Parenting-time log / calendar
• Exhibit G: Moving Party's Income and Expense Declaration (FL-150)
• Exhibit H: Attorney-fee declaration with billing records

SOURCES AND REFERENCES

• Cal. Code Civ. Proc. §§ 1209–1219 (Contempts) — https://leginfo.legislature.ca.gov
• Cal. Code Civ. Proc. § 1218.5 (support contempt; each month a separate count; 3-year / 2-year limitations) — https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-1218-5/
• Cal. Code Civ. Proc. § 1209.5 (presumption of ability to pay support)
• Cal. Fam. Code § 290 (enforcement by contempt); §§ 5230–5238 (earnings assignment); §§ 2030–2032, 3557 (fees); § 17520 (license suspension)
• Judicial Council Forms FL-410, FL-411, FL-412, FL-150, FL-420/FL-421 — https://courts.ca.gov
• Turner v. Rogers, 564 U.S. 431 (2011)
• Hicks v. Feiock, 485 U.S. 624 (1988)
• In re Witherspoon, 162 Cal. App. 4th 522 (2008); In re Cipriano, 188 Cal. App. 4th 1518 (2010)