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Custody Orders and Contempt: When Kids Refuse to Visit the Other Parent

Wayne Hopper, Legal Assistant

Risen v. Risen, COA19-342 (N.C. Court App. 2020)

The legal term “contempt of court” describes situations when an individual either willfully refuses to follow or otherwise fails to obey a legally binding order issued by a court. North Carolina recognizes two types of contempt: criminal contempt and civil contempt. Criminal contempt is used when a party violates a court order (or otherwise showing disrespect for the court) and to deter future acts of contempt. Civil contempt is intended to provide a remedy for an injured party or to force compliance with an existing court order. But does contempt have limits? In North Carolina a trial court judge threatened two minor children with civil contempt during a custody dispute between their parents.

Anndrea Risen (“Plaintiff”) and Paul Risen (“Defendant”) were married and had two children born in 2002 and 2004. Anndrea and Paul later divorced, and in September 2014 a trial court entered a temporary custody order granting the parties joint custody, legal and physical. Mother was given primary physical custody and Father was given secondary custody.

In November 2017, the trial court entered a consent order finding that the September temporary custody order “was now permanent.” Then, in April 2018, Father alleged civil contempt on the part of Mother, saying she failed to comply with the terms of the September 2014 Order, specifically “as to certain custody provisions by withholding the children and attempting to alienate the children from Father.” The motion also requested that the trial court compel the minor children to comply with the order, based on their alleged refusal to visit with their father. At the time of the action, the children were aged 16 and 14, did not have guardians ad litem and were not represented by counsel.

In August 2018, the trial court entered an order concluding Mother was in civil contempt and issued a decree regarding Father’s request that the court compel the minor children to comply with the Custody Order. The trial judge’s decree stated: “The minor children are Order [sic] and said Order shall be enforced by the Juvenile Contempt powers of the Court, to reside with and in the custody of Defendant at all times required under the Vincent Order (September Order).” The children were present in court during the reading of the order. They were addressed personally in an apparent effort to make sure they understood both the order and the potential consequences of failing to follow it. The mother filed a notice of appeal.

The specific issue here is a trial court’s authority to enforce a custody order by compelling minor children under threat of contempt.

Upon review, the Court of Appeals determined that the trial court has no authority to hold a minor child, who has no guardian ad litem nor representation by counsel, in indirect civil or criminal contempt for refusing to visit a parent in a Chapter 50 custody case. A juvenile can be held in indirect contempt only in a juvenile proceeding under Chapter 7B (a juvenile delinquency case), which did not apply here. The Court of Appeals also indicated it was highly concerned with the trial court’s apparent intent to hold the children themselves in contempt for failing to visit with Father. The Court further found that the trial court acted inappropriately when it read the order directly to the children (and threatened to place them in a juvenile detention facility). They based this opinion on the original custody order’s stipulation that issues related to visitation were not to be “discussed in the presence of the child.”

Custody cases can be highly contentious and the emotions involved can bring out the worst in people. No matter how aggressive things become, it is essential to remember that minor children are involved and that the first consideration should be their best interests. When minor children reach an age where they start to push to make their own decisions, it can make custody situations more complicated. If you have shared custody and issues like this arise with older minors, seek the advice of an experienced family law attorney.