Contempt


#1

I am planning on filing contempt on my oldest son’s mother on Monday and I need to know if I have to file a motion for cause with it? I’m very unfamiliar with the process but something has got to change with my situation and she told me today that she will not stop what she is doing. We have a Right to first refusal included in our Custoday Agreement that (signed by a judge and filed as an order). It says that if either parent needs a sitter overnight, we must ask the other parent if they want to keep him before sending him somewhere else. Our 5 year old told me this morning that he stayed the night with his grandparents last night (something that we’ve had a problem with before but I thought she understood she could no longer do this) so I called to talk to her about it this afternoon to see if it was true. She didn’t try to hide that he stayed last night and has been staying with them during the week. She said her work schedule prevents her from keeping him at home with her at night. She works in a salon and makes her own schedule. She has decided to work until 8:30 two or three nights a week and doesn’t want to work that late then get up with him to take him to school because she is tired. She told me today that it’s just what she has to do right now and she has no intentions of stopping even though she told me a year ago that she would be staying with him at her parents house if he ever needed to stay there due to her work schedule.
I’m tired of the lies and her drama so I’m going to file contempt Monday morning but I have no idea steps I need to take. Any help would be much appreciated!
Also, how long does it typically take to get something like this before a judge? She said in 4 months she is planning on moving back close to where her parents live so this won’t be an issue then. I’m hoping we can get this to court and I can try to file something to try to get custody changed so he can be with me during the week and this will never be an issue again.


#2

Also, my ex told me several months ago that she dropped her lawyer so all communications have been between the two of us since then, whereas before I ccd her lawyer on every email she sent me just to cover everything. I went to the courthouse and her lawyer never withdrew from the case… Do I need to fill her in on all the communications since my ex is not including her in on stuff and when I file contempt next week, do I send the notice to my ex or her attorney? I feel like she and her lawyer did this on purpose so she doesn’t have to pay for email communication anymore but so she can keep her on file just in case something happens but I was told in the past before I dropped my lawyer that I always needed to include her lawyer in on my communications to her so they couldn’t lie about things I’ve said/done.


#3

My personal feeling is that if there is not abuse on the grandparents end, you will not get a favorable nod. If there are multiple infractions of the current court order, and you can make a list whereby the stress of these infractions are affecting the child, then you can file a Motion for Contempt. And if you do have abuse, it has to be submitted as evidence, not here say.


#4

There is no abuse. The problem is that she is having them raise our son for her because she doesn’t want to spend time with him but there is a first of right refusal in the order that says she has to ask me before she sends him anywhere to be babysat overnight. She has never once asked me to watch him instead of her parents therefore she is NOT following the court order.


#5

There are two ways to move forward with a motion for contempt. One is through a direct motion and one is through a motion for order to appear and show cause. When an order to appear and show cause is issued, it shifts the burden of proof to the offending party which is why they are the preferred method, but as such, an order to appear is harder to obtain. I usually draft my motions to be a joint motion for contempt and motion for order to appear and show cause. That way, if I get the order, the burden has shifted, but if I don’t, I’m still on the calendar, and I’m able to move forward with my case.

How long it takes really depends on your jurisdiction, how long your estimate for trial will take, and the judge’s availability. Usually, you want to get a quick trial date because with the first trial date, the court usually advises the offending party of their right to counsel which automatically gives them one continuance. In Wake County, they are starting to immediately set 2 trial dates, one quickly which is considered an advisement hearing about the right to counsel, and one a few months out for the actual motion.

If you want custody to change based on the mother’s actions, you should also file a motion for modification.

Lastly, if her attorney is still counsel of record, I would send all court filings both to the attorney and party.