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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.

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