Motion for Civil Contempt

[Forgotten Father]

Ok...yesterday I received a letter of demand from my ex. I had bounced a child support check to her in September 03 and after speaking with her we agreed that I could pay her as soon as I get my tax return. My job is very seasonal and September - February are very tight.

Anyway I received the letter of demand and it states that if I do not pay within 10 days she will contact the states attorneys office to file criminal charges. This really is no big deal because I am sending her a check on Friday.

Now today I receive a Motion for Civil Contempt from her for this same bounced check in September. She states that I am willfully not complying with the order of the court.

I have only missed that one payment and have been making full & regular payments before and since this incident.

Questions:

1. Just curious but does the bouncing of that check constitute a criminal offense?

2. If I make this missed payment as planned on Friday will I still be in contempt?

3. Shouldn't she have waited the 10 days written in her demand before filing this motion?

4. Do I have to respond to this motion within a specific time period or do I just need to go to the hearing...if she even requested one?

5. My attorney is in the process of compiling a request for contempt and a temporary change in custody...will these two issues be heard together?


Thank you

Forgotten Father

[socrateaser]

>1. Just curious but does the bouncing of that check constitute
>a criminal offense?

If you knew that the check would bounce at the time that you wrote it, that would be a criminal fraud. Generally, the DA won't prosecute a bounced check unless the account is completely empty at the time the check is negotiated.
 
>2. If I make this missed payment as planned on Friday will I
>still be in contempt?

Civil contempt for non-payment of support is a simple claim. If plaintiff proves that (1) a valid, enforceable support order existed, (2) the defendant knew of the order, and (3), the defendant failed to pay, that is the prima facie case. It then becomes the defendant's burden to show that he/she did not have the ability to pay at the time payment was due. If defendant proves inability to pay, then no contempt, otherwise contempt. That's the entire case.

Only you know if you can prove inability to pay at the time payment was due.

>
>3. Shouldn't she have waited the 10 days written in her demand
>before filing this motion?

No. A parent cannot bargain away a child's right to support without the court's consent, therefore a waiver to not prosecute for 10 days is void as against public policy.

>
>4. Do I have to respond to this motion within a specific time
>period or do I just need to go to the hearing...if she even
>requested one?

You should respond to the motion. As for a hearing, the motion should specify a date, time and ldepartment/courtroom for a hearing.

>
>5. My attorney is in the process of compiling a request for
>contempt and a temporary change in custody...will these two
>issues be heard together?

The can be heard one right after the other if the attorney arranges it with the calendar clerk.