Custody orders are entered by judges to set rules about parenting and decision-making. Sometimes these orders are the result of a hearing where the judge listens to the parties and witnesses and takes evidence. In these cases, the judge will make findings of fact and conclusions of law and enter a detailed order.
The judge’s order can address custody in several ways, but usually orders have a decision-making component and a custody component. For example, a judge might give equal decision making and physical custody to the parties and instruct them to discuss issues and come to terms. These kinds of orders are called joint custody orders.
The judge can also decide to give a party primary legal and physical custody and allow one parent to make all the financial decision on such matters as health, education, and sometimes, religious issues.
What happens when a party violates an order? Let’s look at a recent case in North Carolina.
This case made the news recently when a mother was jailed for contempt by a judge for baptizing her minor child when the father of the child had been given decision making authority on religious issues by the judge. A day after the judge entered the order Ms. Stocks apparently violated it, and the child’s father later found out about the baptism on Facebook. As you might imagine, the judge was not at all pleased with the unjustified violation of the order. He sent the mother to jail.
Now one might argue that the underlying order granting one parent final say in religious issues has some constitutional issues (and it very well might), but until a higher court reverses a custody order a parent can’t simply decide to ignore the terms, of if the parent very much disagrees with the judge who made the order.
Because contempt of court involves the possibility of jail time, there is usually a right to appointed counsel if a person is unable to afford a lawyer. Also, in contempt matters, the standard of proof is often higher than in a regular civil case because jail time is a punishment.
It is also important to know about the difference between civil contempt and criminal contempt. Civil contempt exists to compel a party to comply.
An example of when a judge might hold a party in civil contempt and jail the person until the person performs is in child support. If a person owes money under an order but has not paid, the judge might order the person jailed until they pay a certain amount. In custody cases, a judge might use civil contempt if the parent has hidden a child and refuses to disclose a child’s location to the court.
Criminal contempt is about punishment and impressing on the party the importance of following the order in the future. A judge might use criminal contempt when a parent has withheld a child from a parent and the court wants to punish the wrongdoing party so that the parent does not violate the order again in the future. Work with an experienced attorney such as the family lawyer Raleigh NC locals turn to.
Thanks to authors at Allen and Spence, PLLC for their insight into family law.