I am going through a divorce and I took my child on vacation with me out of the country. When we got back from our trip I was served with 2 counts of contempt, Family Code Section 2040(a)(1) [taking a child out of the country during a divorce], and not giving him his court ordered visitations. I was told by my attorney that I can take the child out of the country and now I am facing criminal charges? What are my options, what should I do, should I keep the same attorney or is there someone out there that can help me out? Will I lose my custody battle and he will have full custody?
Criminal Defense Attorney
Civil contempt charges would be a fine unless the children are left in another country in which case you may have jail time until the children are returned. You should seek another attorney if your attorney has advised you to break the law by taking the children out of the country against the court order. You may want to seek another attorney to help you with your custody battle as it will likely be a highly contested issue now. Feel free to give me a call or visti my webiste as I am in your area and work in this field of law.
Civil contempt is generally a matter of compelling someone to do something they're not doing. If the contempt offense is not happening any longer, I'm not sure what they're hoping to get out of it. I suggest consulting with your lawyer or getting another one if you are not confident in your current lawyer's ability to help you.
Disclaimer: This email message in no way creates an attorney client relationship between Majeski Law, LLC and the recipient. Responses are general in nature and do not constitute legal advice. You should consult a lawyer regarding any specific legal matter.
Family Law Attorney
A. Don't panic; this will NOT automatically result in a change of custody.
B. Review the order, and the OSC re: conte3mpt with your current lawyer. Most OSC's for contempt are UNsuccessful.
C. Why didn't you discuss the trip with your ex IN ADVANCE? Through your attorney, propose an alternative resolution to your ex: will giving him make-up time solve the problem.
D. Next time, read your order, CAREFULLY, and if there's a disagreement aqs to what's supposed tio happen, make an agreement with your ex, IN WRITING, BEFORE there's a problem.
Family Law Attorney
First of all... you need to take ALL of your paperwork for the Divorce case to a Family Law Attorney to review. If there weren't any court orders in place, then you resort back to the Automatic Temporary Restraining Orders that are set forth on page 2 of the Summons.
2nd: You have a 5th Amendment Privilege against self incrimination. That means DO NOT FILE ANY DECLARATIONS or testify without consulting another attorney and getting advice. A lot of Family Law Attorneys do not have experience in criminal law and they advise their clients to their detriment. Be aware of this when consulting with an attorney & if they fail to mention your 5th amendment privilege, do not hire them. I've seen people get convicted of contempt based on their own attorneys putting them on the stand in their contempt proceedings before the moving party has even proved up their case! Don't fall victim to that.
3rd: I agree that you should offer make-up time to your ex (unless you were taking your child on a pre-planned, court order allowed vacation. Depending on how your custody orders are drafted will depend on the advice that I would give you.
4th: As a general rule, assuming that you didn't misunderstand what the lawyer said & provided that what you say is true, I was SHOCKED to read that an Attorney would advise you that it is okay to take your children out of the country without consulting with or notifying the other parent in advance! I would never advise a client to do that. It concerns me that your attorney either a) Knows what he/she is doing & sees $$$ for himself in it by way of litigation on the matter (setting you up to pay fees knowing that your conduct would open up a huge can of worms in litigation)... or... b) doesn't know any better. Either way, it's NOT a good situation that your attorney allegedly put you in. I'd hire new counsel.
5: You absolutely MUST have counsel to represent you in the contempt proceedings. Since it is criminal in nature, you may qualify for the public defender's office, depending on your financial situation.
6: No other proceedings or change of custody can move forward until there has been a ruling on the contempt. Remember, you do NOT have to testify in those proceedings. It is his burden of proof to prove that you left the country with your children, that you were SERVED with the court order (had knowledge of it) and that you violated the court order. (The terms of the order cannot be vague, if they are....they can't prove contempt.)
This is a general answer and does not constitute legal advice. By answering this question, I am not creating an attorney/client relationship, and no such relationship will be created unless a representation agreement is signed by both you and me.