Monthly Archives: January 2016

What Are The Consequences of Violating a Court Order In A Custody Battle? The Sequel

The Bitter Custody Battle of Kelly Rutherford Comes To An End.

Last September, I posted an article in which I opined that the conduct of Kelly Rutherford would hurt her in her petition for full custody of her children. I was specifically referring to her refusal Kelly Rutherfordto follow the clear terms of a court order, wherein she was supposed to return her children to their father in Monaco, after their summer visit with her in the United States.

If you recall, Ms Rutherford took the position that she did not have to return her children to their father in Monaco, since the children are US citizens. She further opined that Monaco did not have jurisdiction to order her to return the children to their father.

Do you remember what happened back in Sept 2015? A New York Judge ordered Kelly to return the children to their father forthwith, per the clear terms of the Monaco court order.

Back then, I opined that Ms. Rutherford’s conduct would hurt her credibility, and, thereby, hinder her fight for full parental custody.

Fast forward to the present. There was a court hearing in Monaco in November 2015. The final decision was rendered. After a long and bitter 10 year custody battle, a Monaco Judge ruled that the father has primary physical custody. While Ms. Rutherford has visitation rights, she is only permitted to exercise those rights in Monaco. The order states that Ms Rutherford may spend 2 weeks per year with her children. There is also a vacation order in place wherein the parties split holiday schedules.  The children spend half of Christmas, Spring and Summer vacations with their father and their mother. But again, all visits, including holiday visits, must take place in France. Ms Rutherford is prohibited from removing the children from France.

Had Ms. Rutherford returned the children to France back in Sept 2015, per the clear terms of the court order, I think the outcome would have been different. I think that she would have been given more than 2 weeks per year with her children. I think the court would have been far more generous with Ms. Rutherford. For instance, the court may have ordered that the children spend the school year with their father in France, and all of summer vacation with their mother in the United States. I also think the vacation schedule would have been rotated. The court may have ordered that the children spend alternate holidays with each parent. Also, the holidays with mom could have been spent in the United States.

However, by violating a court order, and refusing to return the children to their father last September, Ms Rutherford demonstrated that she cannot be trusted. The court probably feared that if visits were allowed in the United States, Ms. Rutherford would, once again, refuse to return the children to Monaco per court order or agreement. Thus, her fate was sealed back in Sept.

Once again, the Moral of the Story is Never Ever Violate A Court Order!

What happens to a California child support order when the Baby Mama marries the father?

The shorthand answer to that question is that the prior court order for child support is Dad marries baby mamaautomatically extinguished. That is what the 4th circuit of the California appellate court recently held in the 2012 case of In re Marriage of Wilson & Bodine (2012) 207 Cal. App. 4th. 768.

I recently had a client who was facing a Contempt charge for child support payments due from 2012 to the present. The facts were as follows. He and Mom had a child in 1998. In 2002, the Baby momma got a court order for child support based on the findings in a paternity test, which proved that my client is the biological father. The parties got married in 2005. They were divorced in 2009. In 2005, after the parties were married, my client stopped making child support payments. He did not resume making child support payments when they divorced in 2009.  Then, in 2013, the former wife (and former baby mama) moved the court for payments which were past due under the 2002 child support order. The County backed mom and filed Contempt charges against my client. Of course Contempt charges are very serious because that means the client is facing potential jail time.

Then I found the Wilson-Bodine case. In a nut shell, that case states that court orders for child support stem from the parties separate interests in child custody and child support when they are living apart, and raising their children separately. However, once the parties are married, they then have joint interests in the support and custody of their children. Accordingly, any former court orders for child support are automatically extinguished, when the parties subsequently marry. The result is the same whether the former child support order arose from a prior marriage, or from a paternity action.

The Wilson-Bodine court reasoned that in California, there are built in protections for children within the dissolution proceedings. All California courts in a divorce proceeding will examine the income of both parties, and give orders for child support both when the proceedings are underway, and when the parties are finally divorced. Therefore, there is no longer a need to enforce or to rely upon a child support order from a proceeding that arose prior to the time the parties were married.

Accordingly, in my client’s case, since the county was relying on a 2002 child support order, which was entered prior to the time the parties were married in 2005, the Contempt charge against my client had to be dismissed, as a matter of law.  Of course, my client was relieved because that meant he did not have to go to jail. He also does not have to make back payments for past due child support, since said payments were based on the 2002 court order. Under the ruling in  Bodine-Wilson, that order was automatically extinguished when the parties married in 2005.

Keep in mind, however, that he may still be liable for child support based on orders from the 2009 divorce proceeding. The County just cannot go after him for past due payments which are based on the 2002 court order.

You all may be thinking that is just another quirky decision coming out of California. You will be surprised to learn that, in fact, that is not the case, at all! The 4th Appellate District relied on the reasoning in a case coming out of North Dakota, when it handed down its ruling the Bodine-Wilson matter. (See Schaff vs. Schaff (N.D. 1989) 446 N.W. 2d 28, at 31).