Enforcing Child Custody and Visitation Orders in California

After a divorce, it's all too common for parents to have problems with child custody and visitation—from minor irritations like being late to pick up the kids to serious violations like parental kidnapping. If you live in California and your child's other parent isn't following the court's custody orders—whether they were issued in California or another state—you can ask a California court to enforce those orders.

Here's a breakdown of what's involved in enforcing custody and visitation orders in California, including information on what you'll need to prove in order to be successful.

What Are Violations of Custody and Visitation Rights in California?

California child custody laws recognize two types of custody: "legal custody" and "physical custody." Legal custody is the parents' right to make important decisions about the child's life—such as education, religious upbringing, and medical treatment. Physical custody relates to where the child lives, as well as the child's day-to-day care. Parents can share both types of custody, or they might have joint legal custody but not joint physical custody.

Parents are free to agree on a parenting plan that spells out the details of their custody and visitation arrangements. The most effective way to make sure you can enforce your parenting plan is to submit it to a judge for approval and entry as a court order. When parents can't agree, a judge will come up with a parenting order based on what's in the child's best interests.

Unfortunately, there are always some bad apples who won't follow custody and visitation orders. But it's usually not worth involving the court over violations that are simply annoying—such as being late to drop off the child because of traffic or occasionally forgetting to check in with a phone call. On the other hand, when these seemingly innocent missteps become part of a pattern, you might need to take enforcement steps.

You'll always want to request enforcement of serious violations, such as:

• withholding visitation
• parental kidnapping
• traveling out of state with the child without permission or without the knowledge of the other parent, or
• preventing the child from talking or communicating with the other parent.

What to Do First When Your Co-Parent Is Violating Custody or Visitation Orders

When your co-parent doesn't follow custody orders, your first step will depend on how serious the violation is.

Dealing With a Very Serious Custody or Visitation Order Violation

If something has happened that endangers your child's or your health or safety, call law enforcement immediately. For example, if your co-parent has abducted your child or you can't contact your child, call the local police department. You can also reach out to the child abduction unit of your county district attorney's office (to find yours, visit meetyourda.org and scroll down to "Meet Your DA").

If you fear that your co-parent is planning to take your child out of the country without permission, the U.S. State Department recommends that you contact airport police and airlines.

Dealing With Custody or Visitation Order Violations That Don't Endanger Your Child

When your co-parent violates your order in ways that are disruptive, annoying, or designed to harass—but don't endanger your or your child's health or safety—your best bet probably isn't to involve the courts or police right away. But in case you'll need to do that later, you should start preparing by taking the following steps:

• Keep a record of the violations. Be sure to include details of what happened, the date and time, and the contact information of anyone who might be able to back up your version of events.
• Communicate with the other parent. Check your order to see if there's a specified method of communication you're supposed to use; otherwise, it's usually best to use a written form of communication such as email or text so you have a record to refer to. Explain the problem and give the other parent a chance to correct it. Make sure you have documention of the other parent's response and the outcome.
• Try to work out solutions. The occasional give-and-take of co-parenting can be challenging, but going to court will likely cause more problems and animosity. If you can work out a solution that both of you can live with, it's more likely to foster successful interactions in the future. For example, if a tardy co-parent has caused you to miss out on time with your child, propose having an extra day or outing with your child. Again, document any arrangement you come to.
• Consider mediation. Sometimes, violations arise when a parenting plan isn't specific or detailed enough. For example, if the plan says that one parent is supposed to have weekend custody of the child starting on Friday, but doesn't specify when on Friday the weekend will begin, it's bound to cause a problem. Sitting down with a mediator might help you and your co-parent work out creative and specific solutions you can incorporate into a revised plan (which you will then submit to the court for approval).

When none of these steps solve the problem, though, it might be time to involve the court.

How to Enforce Custody Orders in California Courts

When your co-parent regularly violates custody orders and the steps above haven't resolved the issue, or if you suspect your co-parent is acting intentionally, it's time to go to court and ask for enforcement by starting a contempt of court case. You have two years to do this, starting from the time of the violation. (Cal. Civ. Proc. Code § 1218.5(b) (2023).)

Filing a California Contempt of Court Case

To begin a contempt of court case, you'll need to file an Order to Show Cause and Affidavit for Contempt (Form FL-410), along with an Affidavit of Facts Constituting Contempt-Domestic Violence/Custody and Visitation (Form FL-412). (Note that Form FL-410 mentions another affidavit financial and injunctive orders; you won't need to use it unless the violation relates to financial issues.)

Before you fill out the form, read through the information section that gives you detailed instructions about how to complete the form, how to file it, and important next steps, such as how to serve the documents on the other parent. If you want to ask the judge to require the other parent to pay your attorneys' fees and court costs, you'll need to check the appropriate box on the Order to Show Cause and attach an Income and Expense Declaration (Form FL-150).

There will be a fee to file the forms. The court clerk will tell you how much the fee is. If you can't afford to pay it, you can request a fee waiver application.

How to Prove Contempt of Court for Custody or Visitation Violations

The forms will give you an opportunity to describe exactly how and when your child's other parent violated the orders. The information you provide must support all of the following requirements for contempt of court:

• There's a valid, binding custody and visitation order in place. The order must be clear and specific. You'll need to know the date the order was entered to fill out the forms. (It's a good idea to have a copy of the order easily accessible; if you need a copy of the order, contact the clerk of the court that issued the order.)
• The other parent knew about the court order. You'll need to show that the other parent was in court when the order was issued, was served with a copy, or signed the agreement on which the order was based.
• The other parent had the ability to obey the order. In custody and visitation cases, this question sometimes comes up when the other parent doesn't have control over the child—for instance, when a child (especially an older adolescent) refuses to cooperate with visitation. In this situation, a judge probably wouldn't find the parent in contempt as long as that parent has done everything possible to try to get the child to obey. .
• The other parent willfully disobeyed the terms of the order. Often, parents will show willfulness through their words and actions, with no excuse for the disobedience.

It's extremely important to fill out all of these forms completelly and with enough detail. If you don't provide facts and evidence to support a petition for contempt, the judge may reject your case.

The Hearing on a Contempt of Court Case

A family law contempt of court hearing is a special civil proceeding that is treated like a criminal matter—it's essentially a hybrid civil-criminal matter. When you file your contempt of court papers, the court will set a date for a hearing, which is essentially a trial. The parent accused of contempt has the right to be represented by a lawyer, but there's no guaranteed right to a jury trial. (Cal. Civ. Proc. Code § 1217 (2023); Pac. Tel. & Tel. Co. v. Sup. Ct., 265 Cal. App.2d 370 (1968).)

The documentation you've kept of your co-parent's actions, as well as witness statements, will make up much of your proof. You will need to show exactly how and when the violations happened, and what specific part of the order was violated.

After reviewing the evidence, the judge will decide whether you've proved beyond a reasonable doubt that your co-parent is guilty of contempt. This means that your evidence must be so convincing that no reasonable person would question your co-parent's guilt.

Enforcing Custody Orders From Another State

A California judge may enforce a custody order that was issued in another state. (Cal. Fam. Code § 3443 (2023).) But first, you'll need to register the out-of-state custody order by filing a Registration of Out-of-State Custody Order (Form FL-580) and a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Form FL-105/GC-120). You'll have to attach two copies of the order you're trying to register—one certified and one regular copy. Contact the clerk of the court that issued the original order to get a certified copy.

After you've filed these forms, the clerk will mail copies to your co-parent (the "Respondent"). Your co-parent has 20 days to request a hearing to contest the validity of the order you're seeking to register. At this hearing, the judge may only decide whether the other should be registered (not whether it should be modified or enforced). Unless your co-parent can show that there's something procedurally wrong with the order (for example, that the court that issued the order didn't have jurisdiction), the judge will confirm and register the order. (Cal. Fam. Code §§ 3445, 3446 (2023).)

Once the registration of the out-of-state order is complete, you may seek to have it enforced just like an order that was issued in California.

What Happens to Parents Who Violate Custody or Visitation Orders?

The punishment for contempt of violating a family code order increases depending on how many times the person has been found guilty of contempt. For each count of contempt, the judge must order:

• up to 120 hours of either imprisonment or community service for a first contempt finding
• up to 120 hours of both imprisonment and community service for a second contempt; and
• up to 240 hours of imprisonment and community service for third and subsequent contempt findings.

The judge will also order the guilty parent to pay an administrative fee to cover any costs of participation in community service. (Cal. Civ. Proc. Code § 1218(c) (2023).)

On top of these required punishments, judges may also require the guilty parent to pay the other parent's attorneys' fees and court costs for the enforcement proceeding. (Cal. Civ. Proc. Code § 1218(a) (2023); Goold v. Superior Court, 145 Cal.App.4th 1 (2006).)

Criminal Charges in California for Parental Kidnapping

It's a crime in California for a parent to take or keep a child from the parent or guardian with legal custody—even if the parent who has taken the child also has custody. In order to prove the crime, often known as "parental kidnapping," the prosecution must show that the parent:

• took, enticed away, kept, withheld, or concealed a child under age 18, and
• maliciously deprived the other parent of their rights to custody or visitation.

Acting maliciously means performing a wrongful act or acting with an unlawful intent to disturb, defraud, annoy, or injure someone else. The crime may be either a misdemeanor or a felony. For a misdemeanor, the maximum penalty is one year in jail, a $1,000 fine, or both. The maximum sentences for felony convictions are slightly different, depending on whether the guilty parent had legal custody of the child. (Judicial Council of California Criminal Jury Instruction 1251; Cal. Penal Code §§ 277, 278, 278.5 (2023).)

When Custody and Visitation Order Violations Can Lead to Changes in Custody

Sometimes, a parent may violate a custody order because it's not clear or doesn't include specifics (such as when weekend visitation begins). If you're arguing with your co-parent over what the order means, it might be time to ask a judge to change or clarify the order by filing a motion (written legal request) to modify custody or visitation.

In your motion, describe what's been happening and consider suggesting details that will address the problems you're experiencing. Explain how the violations are affecting your child and how your proposed solutions can make things better. Although you may file the motion on your own, an attorney can help you present your arguments in a light that emphasizes to the judge why your proposed changes are in the best interests of your child.

You can find detailed instructions and forms for requesting a modification in the California Courts Self-Help Guide.

Getting Help With Enforcing Your Child Custody and Visitation Order

You can find information on enforcing a custody order on the California Courts custody enforcement page. WomensLaw.org also maintains an excellent website delving into FAQs about California custody.

As we discussed above, you might want to propose mediation when you're faced with relatively minor custody and visitation problems. A trained, neutral mediator might be able to help you and your co-parent come up with a modified proposed order to present to the court. This could help you avoid the expense and time you'd spend pursuing a contentious contempt case.

If you believe filing a contempt of court case is the best course of action—particularly when you're dealing with serious violations—you should strongly consider speaking with a lawyer. Because of the semi-criminal nature of a contempt of court case, the judge will require you to present solid evidence that proves the contempt beyond a reasonable doubt. Although you can pursue a contempt of court case on your own, an attorney can help you present your case in an efficient way that meets this difficult burden of proof. Also, because your co-parent will have the right to an attorney, you could face an imbalance of power and legal skill in the courtroom if you decide to go it alone.