North Carolina Divorce Lawyers Blog
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Civil Contempt V. Criminal Contempt in NC Child Custody Cases

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North Carolina does not require that unmarried or divorcing parents get a custody order.[1] When a mother or father has the designation of a legal parent, they both have the same rights when there is no order in place. Legal parent classification can be obtained in a number of ways, including by any of the following:

  • The child’s birth certificate
  • Child support order
  • Adoption order
  • Affidavit of Parentage

However, just because a custody order is not legally required for you to have rights to visitation and decision-making, having a court order in place provides certain benefits. Not only can a custody order provide structure and guidelines for parents who are struggling to agree to terms, but sometimes these legal documents are required by third parties before they will release documentation or allow decisions to be made.

Court orders are binding, which means once they are finalized and entered, you are legally bound by the terms. Violating a court order can come with steep penalties.

Violation of a Court Order

Child custody cases are considered civil cases, but there are situations in which these issues can become criminal matters. One example is when one parent violates a custody order. A court can find the violating parent guilty of criminal contempt for disobeying, interfering with, or resisting a court order,[2] and that includes a child custody order. Civil contempt[3] is also an option for failing to comply with the custody order as long as:

  • The order is still in effect
  • The violating party willfully disobeyed the order
  • The violating party was able to comply but chose not to

If one parent is found guilty of civil contempt, they cannot also be found in criminal contempt.[4] Your Greensboro divorce lawyer can help you determine which type of contempt is most appropriate for your case, and the judge will make a decision based on the classification you choose. A judge should not order civil contempt if you file for criminal, and vice versa, which is what happened in the case of Hirschler v. Hirschler[5] out of Mecklenburg County.

Sua Sponte Rulings

In Hirschler, Mother filed a Motion for Criminal Contempt against Father, claiming he had violated the custody order. At the beginning of the hearing, attorneys for both parties confirmed that the pleading was for criminal contempt. However, the trial court ordered sua sponte that Father be held in civil contempt. Sua sponte is a Latin term meaning of one’s own accord, and in a legal context, it means that a judge has made a decision on an issue without either party requesting it or otherwise initiating it.

Father appealed this sua sponte ruling. The appeals court agreed with Father, stating that the trial court erred in their sua sponte order for civil contempt. These two issues – civil contempt and criminal contempt – are two separate issues, and a court cannot try them interchangeably. The appellate court, despite making a ruling in disagreement with the trial court’s decision, found that the case was moot because the child had since turned 18 years old.

Do you have questions about your child custody order? The Woodruff Family Law Group’s team of Greensboro divorce lawyers is here to help. We can answer any questions you may have about custody arrangements, court order violations, or any other family law matter.

[1] North Carolina Judicial Branch. Child Custody. https://www.nccourts.gov/help-topics/family-and-children/child-custody

[2] General Statutes. Article 1. § 5A-11. https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_5A/GS_5A-11.pdf

[3] General Statutes. Article 2. § 5A-21. https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_5A/GS_5A-21.pdf

[4] Id.

[5] Hirschler v. Hirschler, 281 N.C. App. 30, 868 S.E.2d 619 (2021). https://www.nccourts.gov/documents/appellate-court-opinions/hirschler-v-hirschler