If You Are Being Denied Your Court-ordered Custody Or Visitation Rights :
It will be your responsibility to do the following:
- Make a crime report with the appropriate police agency and provide the CAU with the report number; Penal Code section 278.5 or 278.
- Provide a complete copy of the most current Court Order.
- Complete and sign the CAU questionnaire.
- If you have an attorney, provide the CAU with his or her name, address and phone number.
- Provide the most recent photograph of the withheld children.
What Happens Next :In most cases, the CAU will attempt to resolve the custody and visitation issues without litigation. This is done in a variety of ways, including but not limited to, phone calls, letters, and personal contacts. Since each case is unique, our approach will differ according to the demands of your case. The CAU could also file a civil contempt or other action to bring the parties to Court.
In some cases, we may criminally prosecute the other party. At no time is the District Attorney representing you as an individual. You are a victim/witness. The District Attorney acts on behalf of the People of the State of California and/or the Superior Court. Since we do not represent you, there is no attorney-client relationship. Therefore, any information you provide the District Attorney=s Office is not confidential and may be subject to disclosure pursuant to court rules or District Attorney=s Policy. Your address and telephone number will not be released to the other parent without your authorization. The other party’s address will not be released to you without his or her authorization.
Other Options :
You can file a civil contempt action for violation of your child custody order. This is done by filing an Order to Show Cause Re: Contempt, with the Superior Court Clerk's Office. You will be required to go back to Court and present your case to the Judge. Although this is a civil procedure, the party found in violation could go to jail.
Visitation Problems When There Is A Court Order
In most cases where the parents of child(ren) are separated or divorced there has been the involvement of a court and judge. Although there may not have been a marriage, there are other court proceedings which will result in a child custody order. Usually the parents or other persons wanting a child custody order participate in the court process in creating an order (mediation).
The judge's decision concerning the child is called an order. The judge's order must be obeyed strictly as it is written. The principal responsibility to enforce the order of the court lies with the parties who have brought the problem to the Court for a resolution. Only after their resources to enforce the order are exhausted or there is a criminal intent involved in a problem should law enforcement or the District Attorney's Child Abduction Unit be contacted.
There are many occasions where the order of the court is ignored or for some reason not obeyed. When this occurs the other party may want the situation corrected so they will not lose any time with their child. If one of the parties believes there is a violation of an order, they can bring the case back to court by their own moving papers and request a modification of the order.
The parties can file their own civil contempt of court action against the person they believe violated the order. Only after a court has found a violation of the order is a person considered to be in contempt of court.
Rights of Custody
Who Can Have A Right Of Custody?
In California more than just the parent can obtain a legal right of custody to a minor child. This right of custody may be a brief visitation period or may be an extended period of time due to unknown circumstances of the regular custodians. Therefore, grandparents, relatives and even non-related friends can ask the court for an order giving them a period of time (temporary custody, guardianship or visitation) with the child.
Some common complaints concerning custody and visitation orders are:
- Failure to return the child as ordered by the court
- Not allowing telephone communication
- Failure to pick a child up for scheduled visitation
- Repeated violations of a visitation order
- Repeatedly late picking up or dropping off the child
- Child safety issues as related to visitation
- Child not wanting to go on the visit the parent
- The order is not written clearly and more than one meaning can be read into the order
Note: Our office can only assist if you are a person with a right of custody and you are being denied access to your child.
Steps that you can take
Some of the steps that you can take to help enforce your own order and alleviate some of the above problems are as follows:
- Exchange a detailed written schedule of visitation which includes the date, time and specific place of pickup/return pursuant to the current Court Order. (Verbal agreements to change terms of the custody or visitation order are not enforceable). If you feel the Court order needs to be changed to meet the needs of both parties and the child, you must file an Order to Show Cause hearing to modify the order with the Superior Court to bring the matter back in front of the judge for a new order. This will require attending mediation again.
- Keep good records, including a written diary of all contacts you have made concerning visitation. This will be especially important should you decide to file a civil contempt action against the offending parent (see #5).
- When a violation of the court order occurs, and you have been denied access to your child by an abduction, concealment or withholding you should make a report with the law enforcement agency which has jurisdiction over your residence. (Penal Code section 784.5). The report should be made for the crime of violation of section 278.5 of the California Penal Code.
- If you are being denied visitation or contact with your child, and you know the address where the child is staying, write a “demand” letter to the other parent demanding that you see or be able to contact your child pursuant to the order. Give a specific date and time when this should happen. BE REASONABLE. Send this letter using U.S. Postal Form 3817 (it is titled “Certificate of Mailing”; there is NO green return card; it is a mere receipt). This form costs fifty-five cents plus postage and gives you a record that you sent a letter. If this fails to work, make a crime report to your local law enforcement agency for violation of section 278.5 of the California Penal Code, and ask that a copy be forwarded to the District Attorney's Child Abduction Unit.
- If one party repeatedly violates the custody order, and reasonable attempts to come to an agreement cannot be reached, you may consider a civil contempt action in the Superior Court. This action is filed in the same action as the custody case and is called: Order to Show Cause Re: Civil Contempt. After a civil contempt is filed and served, the case will be heard and the court will determine if there has been a violation. If the Court determines there was a violation, sanctions can be taken against the offending party including fines and/or jail time. It will be up to the court to determine what sanctions will be imposed.
- If there are repeated problems such as one parent always being late, the Court order can be modified in such a way that each parent is given a reasonable time in which to pick up their child, or the court will order some penalty or condition for not following the order.
- In California, children are not allowed to make the decision as to who they want to live with, or whether they want to visit. Children need both parents and love both. It is up to you to try to encourage your child to visit the other parent pursuant to the order. If there are reasons where you fear for the safety of your child when they are visiting the other parent, or if they are being abused, you must bring the matter to the attention of the police, Child Protective Services (CPS) or other appropriate agency and/or court. You should then consider bringing the matter back to court, so that the court can be aware of the problems and make the appropriate order.
- If at any time you feel there is an emergency situation, call 9-1-1.
- If you have questions or need further assistance, call the Stanislaus County Child Abduction Unit at 209-525-6930. Some information can be provided over the phone, or an appointment will be scheduled for you to come in and talk with someone.
Still have problems
What If I've Tried Everything, And I Still Have Problems?
Sometimes all attempts made by individuals to enforce their court order themselves are to no avail. The Child Abduction Unit (CAU) is mandated by state law to enforce child custody/visitation orders when the parties involved cannot. The District Attorney does not represent private individuals in these matters. Rather we act on behalf of the Superior Court in enforcing child custody and visitation orders.
The CAU does not provide legal advice, but can provide information and referrals to possible remedies. It should be noted the violation of a court order must demonstrate criminal intent to withhold or conceal the child from a party with rights of custody before a crime is committed.
The Child Abduction Unit attempts to resolve the custody and visitation issues without litigation. This is done in a variety of ways, including but not limited to phone calls, letters and personal contacts. Since each case is unique, our approach will differ according to the demands of your case. The CAU could also file a civil contempt or other action to bring the parties to Court. In some cases, we may criminally prosecute the other party.
At no time is the District Attorney representing you as an individual. You are a victim/witness. The District Attorney acts on behalf of the People of the State of California and/or the Superior Court. Since we do not represent you, there is no attorney-client relationship. Therefore, any information you provide the District Attorney's Child Abduction Unit is not confidential and may be subject to disclosure pursuant to court rules or District Attorney's Policy.
Your address and telephone number will not be released to the other parent without your authorization. The other party's address will not be released to you without his or her authorization.