I had this same situation. I was told my ex was supposed to return my daughter exactly as the order stated unless we both agreed to other arrangements.
So that means your ex should have returned your child to you or dropped him/her off at school on the day school resumes (which you said was yesterday). If he did not he is in contempt.
They (one of the magistrates, my ex, and his attorney) are saying that I had her the week before Christmas - then we followed the schedule which ended “the day school resumes” and now it goes back to week to week - being I had her the week before Christmas, they say he gets her this week. This is soooo confusing to me and I’ve been on an emotional roller coaster since yesterday. I thought that the order took precedence over the “regular” week to week and that she would be returned to me “when school resumes” which was yesterday, regardless of who had her the week before the order for Christmas went into effect. I think I’m right about it one minute, and then wrong the next.
Normally the normal schedule resumes when school resumes. If your husband had your daughter until school resumed I would assume that you would have her beginning the afternoon of the day school was back in session. Based on what you have said I agree with your interpretation, however I can
If you don’t mind a lengthy reply, the orders states the following:
“The Plaintiff (him) shall have visitation with the minor child during one-half of Christmas holidays during even number years from 4 pm Christmas day through the remainder of the Christmas Holidays, and the Defendant (me) will have the minor child from 4 pm the day schools gets out for Christmas until Christmas day at 4 pm.”
“The Defendant (me) shall ahve visitation with the minor child during one-half of Christmas holidays during even number years from 4pm the day school gets out for Christmas until 4 pm Christmas day and the Plaintiff (him) will have the minor child rom 4 pm Christmas Day until school resumes.”
As I stated earlier, our regular schedule is Friday to Friday (one week on, on week off) and I had her the week prior to Christmas. Also, in this order I am listed as the Defendant and he is listed as the Plaintiff although he was not even present that day in court and I was the one to file for an order. I mentioned the mix up to my lawyer, who said it wouldn’t make a difference. Seemed strange to me.
Anyway, the magistrate that said YES he IS in contempt has no ties with my ex. The one who said NO he IS NOT in contempt is somewhat of a family friend on my ex. Also, after speaking with the first magistrate, I asked if I had the right to pick my child up from school today (Tuesday - one day after I THOUGHT she was due back) and he said YES she is your child and she is supposed to be in your custody. So, in order to keep things calm I decided to discuss the whole situation with the Principal (court order in hand) before picking her up. Turns out the Principal says he is NOT in contempt, that it is his scheduled week due to me having her the week before Christmas; the kicker here is that my ex’s wife is an employee/teacher at the same school AND this principal used to be my ex’s principal.
It just seems that everyone who has any knowledge/connection with my ex says NO not in contempt, but everyone else says YES.
My ex didn’t even know what the order said prior to Christmas until I explained the schedule to him. Then, when it got closer to Christmas he decided it was his week and informed me he was not sending her home when “school resumes.” I was told by my ex-lawyer (who helped me get the order) that my ex told his lawyer that his wife has week on, week off custody with her daughter and if he didn’t get to keep her this week that would mess up the schedule with the girls being together one week, and both being gone the next week. It’s a convenience thing for him and it seems very dirty.
I just want to know somehow if I have the right to file contempt; if this is really my week or not. I will admit that I had an affair that ended the marriage and I am now paying for it because my ex is working out of spite and those “connections” don’t care for me much either because they all know about the affair. I feel helpless and still very confused. I want to do what is right in the matter… do I file or let it go?
There are other issues such as not having my daughter available for the court ordered phone calls and some court ordered money that I was planning on “lumping” together and filing. Should I file contempt for the “holiday schedule” as well?
Thanks for your time and response - and sorry this one was soooo long.
It seems as though you should have your daughter this week, as I originally thought. If this were the only issue I would say let it go, however if you will be filing a motion for his non-adherence to other parts of the order you may as well include his refusal to resume the normal schedule as well. As they say
Erin, thanks so much for your take on this matter. I really appreciate it.
There is only one (and last) thing I want to clarify: the justification I am receiving for him keeping her this week is that I should just mentally remove the holidays and it would go like this:
Me one week
(Holidays Removed)
Him one week (which would be this week - the week in question)
I hope I’m not being aggravating, just want to make sure I’ve been clear since you said the regular schedule should resume.
Before Christmas we were regular schedule, but the holiday order came into effect when she was with me and so I had her the first part of the holiday (about 2 weeks) and then he got her Christmas day, kept her the last part of the holiday. Had he returned her when “school resumes” that would be a littler more than 1 week of time with him. They’re saying in order to be fair he keeps her this week to equal about 2 weeks for him.
Does it matter who had her on regular schedule before the holiday schedule kicked in?
The holiday schedule overrides the normal schedule, once the holidays are over, normal visitation resumes. If you normally have her weeks 1 and 3 of the month that is the schedule that will resume.
Erin E. Clarey
Attorney with Rosen Law Firm
Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
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301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044
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Durham, NC 27713
Phone: (919) 321-0780
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I am so confused and don’t know if my ex is in contempt or not. My order reads that I have my daughter from 4 pm the day schools gets out for Christmas until 4 pm Christmas Day. (done that, no problem) then her father has her from “Christmas day at 4 pm until school resumes.” School resumed yesterday, January 5, and I am being told that she stays with him until Friday (January 9th). I am get conflicting answers. Yesterday, the magistrate said he was in contempt but the deputy could not enforce due to certain wording not in the order. Today, another magistrate says he is not in contempt due to the fact that I had her the week before Christmas. Before Christmas we were on regular schedule (one week with me, one week with him, with exchanges on Fridays). I got her on Friday, Dec. 12 and the Christmas schedule / order went into effect on Dec. 18 (at 4 pm when school let out for Christmas) so she stayed with me until Christmas Day 4 pm; then she went to him. I can’t figure out which magistrate is right. Is it his week or mine? I don’t want to file papers for contempt if he is not guilty of it. Please help!!!