California Divorce Laws on Child Custody Enforcement & Self-Help

by Teo Spengler
California courts attempt to determine the best interests of the child in custody battles.

California courts attempt to determine the best interests of the child in custody battles.

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Typically, California courts will not enter a decree of divorce between a couple with children until child custody and visitation issues have been addressed and resolved by the judge. Once the order is issued, it becomes binding and both parents are required to follow that order unless it is modified. If one parent fails to follow the order, the other parent can take legal action.

Custody Orders

Few issues in a divorce are more emotional than child custody and visitation. In California, couples must attend mediation and are urged to arrive at an amicable arrangement. If this is not possible, the court weighs many factors, giving the most weight to the best interests of the children, and issues a ruling awarding physical custody to one parent or splitting custody between the parents. If physical custody is awarded to one parent, the order also sets out the other parent's visitation rights. These orders become a part of the divorce decree and are binding on both parents.

Problems

When a divorce is hostile, the custodial parent may attempt to prevent the other parent from seeing the children despite the visitation order, or the noncustodial parent may fail to return the children at the set time. Some parents improperly link visitation to payment of child support, and try to prevent the noncustodial parent from seeing the children if he is late with support payments.

Custody Order Modification

Disagreements can also arise when the order is general and vague. Language like "reasonable visiting times" can lead to problems of interpretation. Sometimes changing circumstances simply make the old child custody order unworkable. In both these cases, you can ask the court to modify the order to make it more specific or to tailor it to the parents' new circumstances. A clear, workable custody and visitation order is easier to follow and easier to enforce.

Enforcement

Various options are open to a parent wishing to enforce a child custody agreement. A custodial parent may contact the police if the other parent does not return a child at the required time after visitation. However, the police may not give priority to a several-hour delay in returning a child, and they may not be able to locate the parent before he returns the child. Alternatively, either parent may ask the court to find the other parent in contempt for failing to obey the order, which can lead to sanctions or even a jail sentence. However, this remedy is expensive to pursue and often proves futile since a court is unlikely to enter a contempt order absent evidence of egregious conduct. If you decide to pursue contempt, keep accurate records of your grievances and, if possible, hire an attorney to assist you.

Child Abduction

The district attorney's Child Abduction and Recovery Unit also provides assistance when one parent keeps a child from the parent who has a right to custody. Under California law, child abduction describes parental-type abductions rather than stranger abductions. When one parent violates the other parent’s right to physical custody or visitation, that parent is committing a felony. The parent whose rights have been violated should contact the county district attorney's office to find out the appropriate first step to report abduction. In some counties, such as San Bernardino, the first step is to make a police report. It is forwarded to the district attorney's office who then investigates the claims and attempts to recover the child.