Contempt and the North Carolina Child Custody Case

North Carolina law provides that violation of a court order is punishable by the contempt powers of the court.  What is contempt of court?  How is it used in child custody cases?

First a few general observations.

  1. A separation agreement or contract is NOT punishable by contempt unless it has been made into a court order or judgment in some way.
  2. Contracts and separation agreements are generally enforceable with an action for breach of contract or specific performance.  These are time-consuming and expensive actions to file.
  3. Only orders of a judge are enforceable by contempt of court.
  4. The contempt process, compared to actions for breach of contract and specific performance, is quicker to prosecute.
  5. There are two kinds of contempt: civil contempt and criminal contempt.
  6. The contempt statutes in North Carolina are found in the North Carolina General Statutes in chapters 5A-11 to 30.
  7. Since a punishment for contempt can be jail time, there is an appointed attorney if the person being accused of contempt can’t afford a lawyer.

What is Contempt of Court?

Contempt of court is when a judge finds that an individual has violated a valid order and enters some kind of sanction.  Depending on the kind of contempt, the sanctions can include jail time, attorney’s fees, etc.

How is Contempt Used in Child Custody Cases?

This is best explained with an example.   Let us imagine Bob and Jane are the parents of Mikey.  Mikey is with Jane one week and with Bob the next pursuant to a court order. What does Jane do if Bob refuses to return Mikey at the end of his week?    She files a motion for contempt and asks the court to punish Bob for his violation of the court order.  The process goes like this:

  • The motion for a judge to enter a show cause order of contempt is filed.
  • The judge reviews the motion and decides whether or not probable cause exists to enter and order for Bob to come to court and explain why he should not be held in contempt.
  •  At the first hearing the judge advises Bob that he has a right to an attorney and gives him the choice to waive his right, hire a private attorney, or apply for an appointed one.  If Bob elects to apply for a court appointed attorney, he has to fill out a financial statement that the court reviews to determine if Bob can afford to pay for a lawyer.
  • On the date of the hearing both sides put on evidence and the court decides whether or not Bob is in contempt of court.

 

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Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement.  He can be reached at 919.863.4183.