Civil Contempt vs Criminal Contempt in Child Custody Disputes – Compliance With Custody Orders

Because the intent of criminal contempt for willful violations of custody orders is to punish, the Defendant is afforded certain rights consistent with criminal due process. A jail sentence is an option and therefore the Burden of Proof would lie with the Plaintiff. That is one reason why it helps to seek legal representation from an attorney who possesses substantial experience handling allegations of criminal charges, even as they may pertain to family law issues. Put simply, experienced lawyers understand the burdens of proof, the rights of the accused, and are able to compare and contrast those with the civil rules of court and the NC family laws under Chapter 50.

It would be a mistake to assume criminal contempt, because certain legal protections are afforded to the Defendant, prohibits the imposition of legal fees. The real issue is whether the family court judge would award legal fees, after fining someone or potentially sending them to jail for criminal contempt and willful violation of a custody order. And while there may be an assumption attorney fees are available only in civil contempt proceedings, and therefore a preference for election under the theory of civil contempt in a Show Cause or Motion to Show Cause, that very well be an incorrect conclusion.

As a practical matter, the preference tends to be actions under civil contempt, given many parents want to ensure current and future compliance with a child custody order. While it would be nice for the offending party to pay for the costs of litigation and the associated legal fees, the ultimate goal to see your children, to enjoy holidays together, and end perpetual violations of custody orders, whether they be minor or substantial.

Some family court judges demand the Plaintiff “elect,” at the outset of the hearing, whether they are proceeding under the legal theory of civil contempt or criminal contempt. Under the NC Family Laws, that may not technically be required or even legally appropriate. While the Defendant cannot be sanctioned for the same act under criminal contempt and civil contempt, the hearing may proceed under both legal grounds, with the Court later deciding, if appropriate after hearing the evidence, whether to sentence for criminal contempt or sanction under civil contempt.

At the same time, as was evidenced in the Grissom opinion, proceeding under both civil contempt and criminal contempt, simultaneously, may result in confusion as to the legal standards of proof and production, and the assumptions associated with which party bears the respective Burden of Proof.

“Frankly, at times it can seem a bit hyper-technical. Criminal contempt is meant to punish, for past behavior, not ensure future compliance with a child custody order or even to determine whether the offending parent is currently in compliance with the custody order. As such, if the parent is in current compliance, even for just that day, criminal contempt may not be appropriate or legally possible. Obviously sending someone to jail for a month and fining them may affect their future decisions, but civil contempt may be the better option.”

– Bill Powers, Divorce Lawyer Charlotte NC

It’s always important for divorce lawyers to ask this of their family law clients: What is your goal? What do you seek to achieve? If you want to work to ensure an existing child custody order is in compliance and will be followed in the future, a Motion to Show Cause for civil contempt of court may be the logical option. If an act cannot be undone, and the violation of the court order was willful, a criminal sanction under criminal court may be the way to go.

And while it may not be immediately apparent, violations of custody orders may be an ongoing fact-pattern, where one act may be subject to criminal contempt and another continuing behavior more appropriate for sanctions for civil contempt. For example, keeping the children for Christmas, contrary to a valid court order, may be subject to criminal contempt. Continuing to keep the children, contrary to a custody order, may need to be addressed under a Show Cause proceeding in family court to get the parent into compliance.

Obtaining reimbursement for legal fees in divorce cases may be a secondary consideration. While frustrating, it may prove quite expensive to bring the other parent to court. That’s one reason it helps to have an active, engaged working relationship with the divorce attorney. It’s extraordinarily important for family law attorneys to understand what is happening in your life, allowing us to help discern whether certain behaviors are annoyances vs. patterns of conduct.