Monday, February 4, 2013

Guest Post by Brian King

Brian King is a Certified Family Law Specialist in North Carolina. King Law Offices has locations in Western North Carolina and upstate South Carolina. Fore more information on custody issues, visit http://kinglawoffices.com/.

***

Our clients often come to our office in a panic. The mother or father of their children have taken the children and will not return them. This leads to an often complicated process of obtaining the children back through legal means.

On the other hand, many of our clients come to the office saying the child of a custody order no longer wants to go visit the other parent. In these cases, our clients are concerned what the child is doing is putting them in violation of the court order.

This process is made even more aggravating when our client has already gone through the process of getting a court order. However, if there is a court order on the issue, an attorney can take immediate action to have the children returned.

While many attorneys will ask clients to wait for a hearing on the issue, the Court of Appeals of North Carolina in Wolfe v. Wolfe, 67 N.C. App. 752, 314 S.E.2d 132 (1984) held that the trial court has authority to issue an order, ex parte (meaning with only one party present). This order may require a party to relinquish custody of the children to an adverse party and to appear and show cause why he or she should not be held in contempt for violating a valid custody order. In that case, the Court held that way even though the last custody order was on appeal at the time the ex parte order was entered.

Based on the Wolfe matter, a parent can go to the court without a hearing and have the Court order the children to be returned. Remember, any time an attorney appears before the court ex parte, that attorney has a duty to tell the court every detail—including those that are against the client that attorney represents.

Once the ex parte order is entered, the Court will set a hearing on the motion to show cause for a later date. Law enforcement is given this new order and will take the offending party into custody if so ordered, and return the children.

This applies even to cases beyond the jurisdiction of North Carolina. Even if North Carolina law enforcement is not involved, another state’s law enforcement will enforce the order. If a North Carolina court made the order, then jurisdiction of contempt applies to the residents of other states. Morris v. Morris, 42 N.C. App. 222, 256 S.E.2d 302 (1979).

Once an ex parte order is entered, the other parent cannot be punished if they return the child prior to the return hearing on the merits. Ruth v. Ruth, 158 N.C. App. 123, 579 S.E.2d 909 (2003).

There are defenses. First, if the parent who is trying to enforce the order caused the problem (for instance, threatening the other parent or children), then there will be no finding of contempt. Scott v. Scott, 157 N.C. App. 382, 579 S.E.2d 431 (2003).

Before disobedience to an order can be grounds for holding a party in contempt, it must be shown that the disobedience was wilful. There have been times when the courts of North Carolina said that if the parent with the child is under a belief that they legally had custody, it is not willful. Campen v. Featherstone, 150 N.C. App. 692, 564 S.E.2d 616 (2002) and Sowers v. Toliver, 150 N.C. App. 114, 562 S.E.2d 593 (2002).

The trial judge has power to make an order forcing a child to visit a noncustodial parent, but only when the circumstances are compelling, and only after he has afforded the parties hearing in accordance with due process. The court creating the order must make factual findings and conclusions of law to justify and support entry of an order, and made findings must include, at minimum, that the drastic action of incarceration of a parent is reasonably necessary for promotion and protection of best interests and welfare of child. Mintz v. Mintz, 64 N.C. App. 338, 307 S.E.2d 391 (1983).

It was held that the evidence was insufficient to support a finding that the plaintiff willfully refused to allow the defendant his visitation with the parties' child. The trial court therefore erred in holding the plaintiff in contempt, where there was no evidence that the plaintiff acted purposefully and deliberately or with knowledge and stubborn resistance to prevent the defendant's visitation with the child. She had prepared the child to go, encouraged him to visit with his father, and told him he had to go, yet the child refused. The evidence showed that the plaintiff did everything possible short of using physical force or a threat of punishment to make the child go with his father, but the child refused to go. Hancock v. Hancock, 122 N.C. App. 518, 471 S.E.2d 415 (1996); Horton v. Horton, 12 N.C. App. 526, 183 S.E.2d 794 (1971), trial court changed custody from mother to father based upon contemptuous behavior of mother.

Where the custodial parent does not prevent visitation from taking place, but takes no action to force visitation when the child refuses to go, the proper procedure is for the noncustodial parent to ask the court to modify the order to compel visitation. However, the trial court's order in this case, though an attempt at an order of forced visitation because it sentenced the plaintiff to jail, but allowed her to purge herself of contempt by delivering the child over to the defendant each and every time he was entitled to visitation, nevertheless failed because there were no findings that the incarceration of the plaintiff was reasonably necessary to promote and protect the best interests of the child. Walleshauser v. Walleshauser, 100 N.C. App. 594, 397 S.E.2d 371 (1990), where the husband was properly held in contempt of temporary child custody visitation order, where he violated the order by not allowing the wife to visit the children during the holidays and by requiring that he be present during her visits.

When a party is dissatisfied with a custody or visitation order, the proper remedy is a motion in the cause to modify the order based upon changed circumstance. However, sometimes parties simply take the law into their own hands and refuse to abide by the terms of a valid order. Despite the fact that paternal grandparents were provided visitation in an order, the plaintiff was in wilful contempt for not obeying the order. The evidence supporting the court's finding of contempt included findings that the plaintiff had the ability to comply with the terms of the order, but had never given the grandparents a useful telephone number, had refused to let them talk to the child when they discovered the correct number, and had refused to allow in-person visitation. The court noted that the parties may not cease compliance with judgments at whatever time they may see fit.[FN17] However, in a civil proceeding in which the defendant mother was held in contempt of court for her failure to comply with the terms of visitation in a custody order, the evidence was insufficient to support the trial court's findings of fact and conclusions of law that: (1) the defendant's failure to inform the plaintiff of her new address was deliberate, intentional, and calculated to deprive the plaintiff of communication with the child; and (2) the defendant's refusal to permit the child to visit with the plaintiff when a request was made by the plaintiff's mother as his agent was deliberate, intentional and contemptuous.[FN18]

In addition to the remedy of enforcement by contempt, N.C. Gen. Stat. § 50-13.3(b) provides that any court of this State having jurisdiction to make an award of custody of a minor child in an action or proceeding therefor, shall have the power of injunction in such action or proceeding as provided in Article 37 of Chapter 1 of the General Statutes and N.C. Gen. Stat. § 1A-1, Rule 65.[FN19]

Even though trial court withheld punishment for the adjudged contempt, it was held that a party was entitled to appeal from an order adjudging her in contempt of a prior custody order.[FN20] While an appeal from an order providing for the custody of a minor child removes cause from the trial court to the appellate court, and pending the appeal the trial court is without jurisdiction to punish for contempt, the taking of an appeal does not authorize a violation of custody order. In fact, if the order is upheld by the appellate court, the violation may be inquired into in a contempt proceeding when cause is remanded to the trial court.[FN21] The trial court had the power to issue, while a previous order awarding custody of children to the father was on appeal, an ex parte order requiring the mother to relinquish custody of the children to the father and appear and show cause why she should not be held in contempt of court for violating the previous order. The father had made a showing that the mother was in violation of the order and wrongfully had custody of the children. The mother was not entitled to notice or an opportunity to be heard prior to hearing on the ex parte order requiring the mother to relinquish custody of her two minor children to the father and to appear and show cause why she should not be held in contempt for violating a valid custody order. Wolfe v. Wolfe, 67 N.C. App. 752, 314 S.E.2d 132 (1984).

 


[FN1] For discussion of enforcement orders and judgments through the remedy of contempt, see § 20:11. For discussion of appeals, see sections 22:1 et seq..

[FN2] Ex parte Biggers, 226 N.C. 647, 39 S.E.2d 805 (1946).

[FN3] Elmore v. Elmore, 4 N.C. App. 192, 166 S.E.2d 506 (1969).

[FN4] Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999). See also, Beck v. Beck, 64 N.C. App. 89, 306 S.E.2d 580 (1983), mother could be held in civil contempt where father was unable to exercise his visitation rights because of the willful, deliberate and wrongful acts of the mother.

[FN5] Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999).

[FN6] N.C. Gen. Stat. § 5A-11(a)(3). For discussion of the use of criminal contempt, see Atassi v. Atassi, 122 N.C. App. 356, 470 S.E.2d 59 (1996).

[FN7] Mather v. Mather, 70 N.C. App. 106, 318 S.E.2d 548 (1984), contempt proceeding brought against divorced wife alleging that she violated custody agreement was to determine whether wife was in “criminal contempt” and procedure governing criminal contempt would be applied, since court ordered arrest of wife, which would be available only in criminal contempt proceedings.

[FN8] Wolfe v. Wolfe, 67 N.C. App. 752, 314 S.E.2d 132 (1984).

[FN9] - [FN10] Ruth v. Ruth, 158 N.C. App. 123, 579 S.E.2d 909 (2003).

[FN11] Scott v. Scott, 157 N.C. App. 382, 579 S.E.2d 431 (2003).

[FN12] Campen v. Featherstone, 150 N.C. App. 692, 564 S.E.2d 616 (2002).

[FN13] Sowers v. Toliver, 150 N.C. App. 114, 562 S.E.2d 593 (2002).

[FN14] Mintz v. Mintz, 64 N.C. App. 338, 307 S.E.2d 391 (1983).

[FN15] Hancock v. Hancock, 122 N.C. App. 518, 471 S.E.2d 415 (1996); Horton v. Horton, 12 N.C. App. 526, 183 S.E.2d 794 (1971), trial court changed custody from mother to father based upon contemptuous behavior of mother. See, Interference by custodian of child with noncustodial parent's visitation rights as ground for change of custody, 28 A.L.R. 4th 9.

[FN16] 28 A.L.R. 4th 9. See also, Walleshauser v. Walleshauser, 100 N.C. App. 594, 397 S.E.2d 371 (1990), where the husband was properly held in contempt of temporary child custody visitation order, where he violated the order by not allowing the wife to visit the children during the holidays and by requiring that he be present during her visits.

[FN17] Glesner v. Dembrosky, 73 N.C. App. 594, 327 S.E.2d 60 (1985).

[FN18] Bethea v. McDonald, 70 N.C. App. 566, 320 S.E.2d 690 (1984).

[FN19] See, Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986), trial judges have authority to enforce orders providing for visitation by contempt proceedings and by injunction. For discussion of injunctive relief, see § 20:7.

[FN20] Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978).

 

[FN21] Sturdivant v. Sturdivant, 31 N.C. App. 341, 229 S.E.2d 318 (1976).

[FN22] Wolfe v. Wolfe, 67 N.C. App. 752, 314 S.E.2d 132 (1984).

 


 

http://lawprofessors.typepad.com/family_law/2013/02/guest-post-by-brian-king.html

| Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef017ee8233765970d

Listed below are links to weblogs that reference Guest Post by Brian King:

Comments

Post a comment