In many instances, a parent will not agree with a court’s order regarding the custody of a child. While there are appropriate means for asking a court to modify or reconsider a custody order, some parents, unfortunately, take matters into their own hands and simply disregard a court-ordered custody agreement, and withhold a child from the other parent. Fortunately, however, the law provides avenues for parents who are seeking to remedy the unjust denial of access to their children. If you need assistance with a child custody matter, it is critical to engage a trusted California child custody attorney to assist you in protecting your rights.
Establishing Child Custody
Under California law, both parents are presumed to have a right to custody and visitation. Thus, if no existing order establishes custody of a child, either parent can seek court intervention to establish custody. A written order is essential as it helps parents protect their rights in the event a co-parent attempts to withhold a child. A court asked to decide a custody matter will set forth an order that is in the child’s best interest after considering factors such as the health of the child and each parent, the child’s needs, the parents’ resources, and any other relevant factors. It is important that the order contains clear provisions for the division of custody, including dates and times for exchanges and methods for resolving any disputes.
Enforcing an Existing Custody Order
In cases in which there is an existing custody order that one parent fails to comply with by withholding access to a child, the parent that is denied access has several options. First, the parent could contact the police and ask them to enforce the order. The parent denied custody could also contact the Child Abduction and Recovery Unit at his or her local district attorney’s office to seek enforcement of the order.
If the parent, who was denied custody, believes the child is in danger or other exigent circumstances exist, the parent should file for Emergency (ex parte) Orders of the Court and Request that the hearing occur on a shortened-time basis. Emergency Orders may be ordered by a judge prior to a court hearing on the matter; however, emergency orders are difficult to procure and, should one be needed, a parent should contact an experienced family law attorney.
If a child is withheld, a parent may also file to modify the child custody schedule. Court’s do not look kindly upon parents who withhold children in violation of the court’s orders. Pursuant to Family Code 3048, if a court determines that a parent has withheld the child from the other parent, a court may:(A) Order supervised visitation for the parent that withheld the child; (B) Require a parent to post a bond in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to offset the cost of recovery of the child in the event there is an abduction; (C) Restrictthe right of the custodial or noncustodial parent to remove the child from the county, the state, or the country; (D) Restrict the right of the custodial parent to relocate with the child, unless the custodial parent provides advance notice to, and obtains the written agreement of, the noncustodial parent, or obtains the approval of the court, before relocating with the child; (E) Require the surrender of passports and other travel documents; (F) Prohibit a parent from applying for a new or replacement passport for the child; (G) Require a parent to notify a relevant foreign consulate or embassy of passport restrictions and to provide the court with proof of that notification; (H) Require a party to register a California order in another state as a prerequisite to allowing a child to travel to that state for visits, or to obtain an order from another country containing terms identical to the custody and visitation order issued in the United States (recognizing that these orders may be modified or enforced pursuant to the laws of the other country), as a prerequisite to allowing a child to travel to that country for visits.
If the withholding of the child violates a court order, a parent may file for a criminal contempt against the parent who withholds the child for each instance that the child is withheld. In order to prevail on a contempt, the wronged party must prove: (1) there existed a valid court order; (2) the other party had the ability to comply with the court order; and (3) the other party did not comply with the court order. A contempt action usually has two court hearings. The first hearing is the arraignment wherein the charges are read and a plea is made by the defendant. If the defendant does not plead guilty the second hearing is usually a trial on the contempt. California Code of Civil Procedure Section 1218 provides for the mandatory penalties imposed upon parties found in contempt. For contempts pursuant to the Family Code, the court shall order :
(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.(2) Upon the second finding of contempt, the court shall order the contemner to perform community service of up to 120 hours, in addition to ordering imprisonment of the contemner up to 120 hours, for each count of contempt.(3) Upon the third or any subsequent finding of contempt, the court shall order both of the following: (A) The court shall order the contemner to serve a term of imprisonment of up to 240 hours, and to perform community service of up to 240 hours, for each count of contempt. (B) The court shall order the contemner to pay an administrative fee, not to exceed the actual cost of the contemner’s administration and supervision, while assigned to a community service program pursuant to this paragraph.
If a parent believes his or her co-parent intends to abduct a child or permanently withhold access, the parent should immediately contact an attorney to discuss what measures are available to prevent abduction or to seek the return of an abducted child.
Speak to an Experienced Family Law Attorney
In most instances, it is in a child’s best interest to spend time with both parents, and if one parent withholds a child from the other, it may require court intervention to repair the situation. If you need help gaining access to your child, experienced California child custody attorney Ethan M. Weisinger can advise you of your options and aid you in obtaining a result that is beneficial for you and your child. Mr. Weisinger can be reached via the online form or at 925-258-2020 to schedule a meeting about your case.
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