Custody Questions, Part 3

What happens if I’m endangering my child by following a Court Order?

What happens when you’ve gone to Court and presented evidence, the judge issued, a custody Order, and then someone fails or refuses to follow it properly? What can a person do when the other parent isn’t holding up their obligations under the Order? Let’s say that the custody Order allows you to have the children for a two-week vacation in July, you arrange the details with your ex, and then your ex refuses to transfer the kids to you when it’s time to leave town? Many people respond by fighting fire with fire and violating the Order themselves, perhaps by withholding the next child support check in the hypothetical situation that I just described. That’s not the approach that I would advise, for reasons that we will get into here in this post. Other people respond to such frustrating situations by calling the police, which is usually not the ideal remedy either, given that in most such instances an actual crime hasn’t been committed. While there is no harm in seeing if law enforcement will assist, and sometimes the will, there is another approach that should also be pursued: the remedy of contempt. When a party to a custody case fails to comply with an Order, the other party has the right to ask the judge to force them to come to court and explain why they shouldn’t be held in contempt of Court for violating the Order? What’s contempt, you may ask. Essentially, a party is in contempt of Court when they fail to comply with an Order and that failure is willful and without any valid excuse. If a Court finds someone in contempt, the Court will then require compliance with the Order and also may be able to sentence the party to time in jail, order the party to pay a fine, order the party to pay the other party’s attorney’s fees, and do just about anything that will ensure future compliance with the Order. When compliance with the Order may still be achieved, such as when a child support payment was missed, the violating party is in “civil contempt” and the judge may award attorney’s fees along with the other remedies I mentioned. But if the failure to comply is something in the past that cannot be corrected, the only remedy is “criminal contempt,” which is punitive and which cannot involve the award of attorney’s fees.

I shared all of that preliminary information in order to be able to properly zero in on the question asked in the title of this blog post. If an Order requires a parent to turn over a child (or children) to the other party at a certain time, the failure to do that could result in a finding of criminal contempt, which will allow a judge to sentence the violating party to time in jail as a punishment. That’s obviously a very serious consequence, so parents should tread very carefully when risking criminal contempt. But what happens in a situation when you are required to return a child to the other party and you have reason to believe that doing so might jeopardize the safety of the child? Going to court to modify the custody Order is always an option, but that process takes time, so what if the child would be endangered during the time it takes to get to court?

In 2018, a North Carolina appeals Court addressed this sort of issue in the case of Grissom v. Cohen. In that case, the mother of a 17-year-old child asked a Court to hold the father of the child in contempt after the child refused to return to her mother’s custody. She claimed that the father was not doing enough to require the child to return and that he should force the child to do so. The appeals court held that the father was not willfully in contempt without a showing that he had deliberately interfered with or frustrated Mother’s visitation, and found no evidence of such intent. The Court affirmed that the father, and others in such situations, had an obligation to do anything he reasonably could to encourage his daughter to comply with the custody Order, and that he had indeed done so given the circumstances. It turns out that the child in this case suffered from depression, engaged in self-cutting, and flatly refused to return to her mother’s home. Nevertheless, the girl’s father did encourage the child to visit mother, driving her to her mother’s home almost daily as well as encouraging visitation between the two at his home. Mother’s lawyers argued on appeal that father should have done more, given that he did not punish daughter by taking away her cell phone, and allowed her to visit friends and travel. The Court disagreed, ruling that such action would have been detrimental to a child suffering from depression. The Court went on to discuss the concept of a “forced visitation Order.” In her appeal, the mother argued that the trial court should have ordered the father to physically force his teenage daughter to visit with her mother. Father argued that he was complying with the Order by driving the child to mother’s house and telling her to get out of the car and go with her mother. On this issue, the appeals Court held that father’s behavior in this case would not constitute contempt unless an additional “forced visitation Order” had first been entered by the Court.

What’s the upshot of this ruling? The lesson here is that in certain situations, where a child’s safety is at stake, it may be possible to refrain from forcing a child to spend time with the other parent and avoid being held in contempt. There is so much more that I could say about this case and this issue, and what happens in Court on a case like this ultimately depends on many technicalities and nuances, so it is important to seek good legal counsel before making any decision that might be viewed as a willful violation of a Court’s Order. But it is certainly possible to protect a child from danger that might result from the other parent’s behavior and avoid being held in contempt for it.

Custody Questions, Part 2

At what age do my kids get to decide who they live with?

Parents in custody disputes often ask me “How old do my kids have to be to decide who they live with?” The simple answer to that question is that they do not get to decide. If parents can’t agree on that issue and end up in Court, a Judge will make that decision. But let’s explore a slightly different question: “When and how will a judge consider the opinions and preferences of my child?” And that’s a great question with an interesting and fairly complicated answer. Let’s talk about it.

The North Carolina custody statute does not contain any provision that specifically addresses this issue. However, decisions by North Carolina appeals courts have established that trial Courts have discretion on the issue of the testimony of children in custody cases. And the cases addressing that issue have established that once a child reaches the age of 10 or more, an appeals court is probably not going to overturn the decision of a trial court to allow the child of such an age to testify. Moreover, the older a child gets the less likely it is that there will be any barrier to considering the testimony of the child. Does this mean that a judge has to allow a 10-year-old to testify? No. But it does mean that a judge is free to allow such testimony. And because that is the case, most judges will allow some sort of testimony from children to be considered once a child reaches the age range of 10-12 years old, and almost all judges will consider the testimony of kids who are age 13 or older.

Does that mean that a 10-year-old child will be allowed to testify on a witness stand in a custody hearing or trial? That usually will not happen due to another option that exists. Judges are allowed to question a child outside of the courtroom, usually in the judge’s “chambers” (which is an old-fashioned term that basically means the same thing as an office), and usually with only the attorneys for the parties present to observe the questioning. It’s very important to understand the rules for how an in-chambers interview is allowed to occur. North Carolina appellate caselaw establishes that an in-chambers interview, which occurs outside the eyeshot and earshot of the parents, can only occur if BOTH of the parents agree for that to happen. If both parties agree to the in-chambers interview, caselaw requires that the Judge allow the attorneys to be present for the interview to at least observe. The Judge may allow the attorneys to also ask the child questions. If both parents agree, the Judge may conduct the in-chambers interview one-on-one with the child, without the attorneys present. It’s been my experience that a one-on-one meeting between the judge and the child is the most effective method for accurately securing the opinions and preferences of a child, but again, that can only occur if both sides agree.

The North Carolina custody statute does not contain any provision that specifically addresses this issue. However, decisions by North Carolina appeals courts have established that trial Courts have discretion on the issue of the testimony of children in custody cases. And the cases addressing that issue have established that once a child reaches the age of 10 or more, an appeals court is probably not going to overturn the decision of a trial court to allow the child of such an age to testify. Moreover, the older a child gets the less likely it is that there will be any barrier to considering the testimony of the child. Does this mean that a judge has to allow a 10-year-old to testify? No. But it does mean that a judge is free to allow such testimony. And because that is the case, most judges will allow some sort of testimony from children to be considered once a child reaches the age range of 10-12 years old, and almost all judges will consider the testimony of kids who are age 13 or older.

Does that mean that a 10-year-old child will be allowed to testify on a witness stand in a custody hearing or trial? That usually will not happen due to another option that exists. Judges are allowed to question a child outside of the courtroom, usually in the judge’s “chambers” (which is an old-fashioned term that basically means the same thing as an office), and usually with only the attorneys for the parties present to observe the questioning. It’s very important to understand the rules for how an in-chambers interview is allowed to occur. North Carolina appellate caselaw establishes that an in-chambers interview, which occurs outside the eyeshot and earshot of the parents, can only occur if BOTH of the parents agree for that to happen. If both parties agree to the in-chambers interview, caselaw requires that the Judge allow the attorneys to be present for the interview to at least observe. The Judge may allow the attorneys to also ask the child questions. If both parents agree, the Judge may conduct the in-chambers interview one-on-one with the child, without the attorneys present. It’s been my experience that a one-on-one meeting between the judge and the child is the most effective method for accurately securing the opinions and preferences of a child, but again, that can only occur if both sides agree.

Custody Questions, Part 1

Is it possible to get sole custody? Is it possible to get more than half of the custodial time?

I frequently encounter people who are trying to protect their children from being harmed by the other parent. Often, such people feel frustrated and defeated before ever speaking with a lawyer because so many friends have told them something to the effect of “everyone gets 50-50 custody” or “Judges give everyone 50-50 custody unless you can prove some sort of severe endangerment.” Such statements are probably even more discouraging and confusing given the fact that most people have very little understanding of how custody is even determined in North Carolina, and often don’t even have a proper concept of the terms involved. People throw around terms like “full custody” and assume they have meaning regarding the amount of time each parent has with the kids, as well as decision-making authority. In reality, Family Court judges in North Carolina determine “legal custody” and “physical custody” separately. In each case, a Judge will decide legal custody, which refers to which party (or both) will enjoy the ability to decide big-picture issues such as where a child enrolls in school or whether a child will undergo a major medical procedure. Separately from that, a judge will decide physical custody, which involves what amount of time a child will spend in the household of each parent, whether it be every other weekend or every other week.

Regardless of whether we are talking about legal custody or physical custody, I’m here to tell you that the “everyone gets 50-50” myth is simply not true. At all. Such a notion has no basis in North Carolina law. For purposes of what we are discussing in this post, the relevant sections of the North Carolina custody statute read as follows (I have underlined certain portions for purposes of discussion and have omitted other sections):

Ҥ 50-13.2.

(a) An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party….

(b) An order for custody of a minor child may grant joint custody to the parents, exclusive custody to one person, agency, organization, or institution, or grant custody to two or more persons, agencies, organizations, or institutions….”

The portion of the custody statute that I just quoted mandates that a Judge decide custody, whether that means decision-making authority or the amount of custodial time, based upon the “best interests of the child” (or “best interests of the children”). That is the only standard. And a Judge is obligated to make a ruling based upon whatever the weight of the evidence reveals. If you and your attorney can compile admissible evidence, whether it be positive evidence in your favor or negative against the case of the other side, that proves that it’s best for your kid to spend more time with you, then a judge must enter an Order requiring that. There are no exceptions to that requirement. And that means that if you believe your children are better off with you, and that you can prove it, then you always have a chance of getting that outcome in Court.

So why do rumors such as “everyone gets 50-50” persist? I think such misconceptions linger due to a combination of confusion and cowardice. People get confused due to the fact that 50-50 custodial time is an ideal. And when the evidence doesn’t point in the direction of either parent, then a Court ought to give great weight to that ideal. But the vast majority of people who end up fighting over kids are NOT in an ideal situation, and in those cases the evidence usually points in one direction or the other. What did I mean when I mentioned cowardice? I think far too many lawyers are afraid to go to trial and lose. So they conceal their fear and avoid trial by advising litigants that 50-50 custodial time is inevitable and that it isn’t worth fighting for something more. And that message gets spread around through the gossip mill, unfortunately. But that message is patently untrue. The lesson? Don’t follow the advice of cowardly lawyers. The law takes the best interests of your children seriously. If you believe that is worth fighting for, then it’s definitely possible to get the outcome you want in at trial.