The Problem With Contempt Claims in Child Custody Matters
I routinely field inquiries from parents who explain that the other parent is not complying with the child custody orders issued by the California Family Law Court and they wish to file a contempt action. I usually try and talk them out of it.
Contempts are hard to win. Contempts are quasi-criminal cases because one potential punishment is jail time. As such a defendant in a contempt action has a right to a court appointed lawyer. There is no right to a court appointed lawyer in any other area of family law. (Hint to laypersons, if the defendant is appointed a lawyer the courts must take contempt seriously.) Because contempt is a quasi-criminal proceeding, the Court must strictly construe the underlying court orders and require substantial evidence of a willful violation of an order.
Contempts are expensive. The preparation for the prosecution of a contempt case is labor intensive: the lawyer representing the party seeking the contempt must do a great deal of work–on average more than 20 hours–for which the party seeking the contempt must pay.
The Most Recent Contempt Case Addressed by the California Court of Appeal, Houser v. Superior Court of Orange County, illustrates how hard they are to win. This case was published on December 12, 2025.
FACTUAL AND PROCEDURAL BACKGROUND The parties, Houser and Larsen, are the parents of Xander, born in December 2007. Houser has primary physical custody in Nevada City, while Larsen resides in Orange County. Larsen has visitation one weekend out of the month. The contempt proceeding arises from two provisions of a May 6, 2019, court order (the “2019 Order”).
The first is the Joint Legal Custody Order, which simply states: “The parties shall share joint legal custody of Xander.”
The second is the Scheduling Order, which provides: “Neither parent shall schedule any school events, extracurricular or religious events, medical or therapeutic appointments, or other events during the other parent’s custodial time without approval of the other parent.”
On April 9, 2024, Larsen filed an amended Order to Show Cause for Contempt, alleging 36 violations of court orders. After numerous counts were dismissed, a trial was held on October 28 and 29, 2024, on five remaining counts. The five counts at issue are as follows: Count 27 (Scheduling Order violation): Larsen alleged Houser interfered with her February 2023 parenting time by “unilaterally signing him up for [a] mountain bike event.” The evidence showed Houser informed Larsen on Wednesday, February 15, 2023, of a team caravan for a bike event scheduled for that Saturday, during Larsen’s weekend. When Larsen objected, Houser withdrew Xander from the event and confirmed on Friday, February 17, that he would be at the regular drop-off the next day.
Count 29 (Scheduling Order violation): Larsen alleged Houser interfered with her December 2022 parenting time by “unilaterally signing him up for ski team.” The evidence showed Houser informed Larsen on December 13, 2022, that Xander had ski practice at 9:00 a.m. that Saturday, during Larsen’s weekend. Larsen objected and ultimately testified that she chose not to travel to Nevada City for her visit that weekend.
Count 30 (Joint Legal Custody violation): Larsen alleged Houser unilaterally made the decision for Xander to join the ski team, informing her on November 6, 2022, after the fact. Houser testified she authorized Xander’s participation after he signed himself up.
Count 31 (Joint Legal Custody violation): Larsen alleged Houser unilaterally made the decision for Xander to join a basketball team, informing her on March 27, 2022. Houser testified Xander had played on the team every year since 2018 with Larsen’s assent. Count 34 (Joint Legal Custody violation): Larsen alleged Houser unilaterally moved forward with a treatment plan for Xander’s braces. The evidence showed Houser informed Larsen on August 24, 2022, that the dentist recommended braces, attached a treatment plan.
Count 34 (Joint Legal Custody violation): Larsen alleged Houser unilaterally moved forward with a treatment plan for Xander’s braces. The evidence showed Houser informed Larsen on August 24, 2022, that the dentist recommended braces, attached the treatment plan, and stated, “I will make the appointment.” Larsen did not object to the treatment.
The trial court found Houser guilty on all five counts. The court stated that Houser’s actions were “part and parcel of that same course of conduct” that had previously resulted in a $100,000 sanction against her and that her decisions were presented to Larsen as a “fait accompli.” The court imposed a sanction of $10,000 ($2,000 per count). Houser now petitions for a writ of certiorari to annul the contempt judgment.
The appellate court disagreed. The appellate court noted that contempt of a court order is a quasi-criminal proceeding due to the potential for imprisonment. (People v. Gonzalez (1996) 12 Cal.4th 804, 816.) Accordingly, a judgment of contempt is not entitled to the usual presumptions of correctness. (See Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1166-1167.) We must strictly construe the underlying order in favor of the accused and will annul the judgment unless there is substantial evidence of a willful violation of a lawful order that is both specific and unambiguous. (See In re Marcus (2006) 138 Cal.App.4th 1009, 1014-1015.) Any ambiguity must be resolved in favor of the person charged with contempt. (Id. at p. 1015.) Punishment for contempt “‘can only rest upon [a] clear, intentional violation of a specific, narrowly drawn order. Specificity is an essential prerequisite of a contempt citation.’” (Board of Supervisors v. Superior Court. (1995) 33 Cal.App.4th 1724, 1737.) The power of contempt is the court’s “‘ultimate weapon,’” to be used with great prudence. (Koehler, supra, 181 Cal.App.4th at p. 1171.)
The appellate court annulled the contempt judgment. Before we talk about the court’s reasoning let’s talk about how expensive the contempt application was for the party seeking it. The party seeking the contempt submitted a petition alleging 36 violations. Only five were actually tried to the court. The preparation of the petition alleging 36 violations took a lot of time and cost a lot of money to prepare the evidence, draft the pleading and then argue about each of the contempt counts 31 of which were dropped.
The appellate court’s reasoning. 1. Counts 27 and 29: The Scheduling Order The Scheduling Order prohibits a parent from “scheduling” an event during the other’s time without approval. Strictly construed, Houser did not violate this order. In both instances involving the mountain bike event and the ski team practice, Houser did not personally set the dates and times of the events; the school and its coaches did. While Houser authorized Xander’s participation, the act of “authorizing” him to join a team is not the same as “scheduling” a specific practice or event. To hold otherwise would be to expand the meaning of the order beyond its plain language, which is impermissible in a contempt proceeding. Furthermore, with the mountain bike event (Count 27), Houser cured any potential violation by withdrawing Xander from the event as soon as Larsen objected. There is no substantial evidence to support a finding of contempt on these counts.
2. Counts 30, 31, and 34: The Joint Legal Custody Order The contempt findings regarding Houser’s unilateral decisions permitting Xander to join the ski team (Count 30), the basketball team (Count 31), and authorizing braces (Count 34) fail because the underlying Joint Legal Custody Order does not prohibit those decisions. The order simply states, “The parties shall share joint legal custody of Xander.” While this reflects the court’s intent for co-parenting, it does not prohibit unilateral decision-making altogether. In establishing joint legal custody, Family Code section 3083 requires a court to “specify the circumstances under which the consent of both parents is required.” Where an order fails to do so, section 3083 provides that “either parent acting alone may exercise legal control of the child.” The 2019 Order contains no such specifications. It does not require mutual consent before enrolling a child in sports or consenting to dental care. While the court believed that Houser’s pattern of presenting Larsen with a “fait accompli” was poor co-parenting, that conduct does not violate the express terms of the court’s order. Because a finding of contempt requires a willful violation of a clear and specific command, these counts cannot stand. As one court noted, “[I]t is an abuse of discretion to sanction a party for disobeying an order which neither compelled nor prohibited any action.” (Van v. LanguageLine Solutions (2017) 8 Cal.App.5th 73, 82.)
TAKE AWAY FOR PARENTS WHO SUFFER WHEN THE OTHER PARENT
VIOLATES CUSTODY ORDERS
Well, if contempt is hard to win what should I do if the other parent violates a custody or parenting schedule order? My advice is to file a request for orders to modify the order in light of the violations. Seek a change in the order that gives you the parent who is complying with the order more time or control or whatever it is that will mitigate the problems with custody or scheduling. It is a lot cheaper and the chances of success are greater.
Okay so how would you, Mr. Gentry, have handled this situation if you represented the party who sought the contempt? I would have filed a motion to modify the child custody orders. Specifically, I would have sought an order modifying the custody orders to state “Neither parent shall enroll, register, or otherwise authorize the minor child to participate in any [extracurricular/_________] activity that occurs entirely or partially during the other parent’s custodial time without the other parent’s prior [written] consent. This prohibition applies regardless of whether the activity schedule is set by a third party, such as a coach or league.”
The real reason people file contempt petitions about child custody and parenting schedule issues is that they are mad at the other parent and want the other parent to be punished for their bad behavior. Unfortunately this is a poor reason to file a motion for contempt. The California family law courts determine child custody and parenting schedules according to the best interests of the child. The child’s best interests will generally be the focus of any judicial determination of custody and parenting schedule orders. The California family law court is not designed to make a lot of personal behavior orders.
The appellate court wrote: More broadly, life for a teenager involves sports, activities, and occasional medical needs. While co-parenting requires communication, a parent who facilitates these normal life activities for their child should not be held in contempt unless they have willfully violated the express and specific terms of a court order. The orders here lack the specificity required to support the court’s findings. We therefore grant the petition and annul the judgment of contempt.
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