Interpretation of Custody Order


#1

Dear kmchaos:

Greetings. Let’s see if I can help:

  1. If the parent specifically does not agree, and the order calls for agreements prior to elective procedures, then I believe that the other parents is not willfully failing to comply with the order and the Motion and Order to Show Cause should not work. Now, if the parent did not specifically state that they do not consent to the braces, I think it is a murkier issue.

  2. No, what “legal fees” do they have? They may have some costs, but not any fees. I cannot answer the last question…as legal fees are in the discretion of the judge. Best of luck.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
RosenDivorce.com
919-787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#2

Thank you for your kind response.

The fees the ex is seeking are costs she has incurred for consulting with her former attorney for guidance on how to prepare a Motion to Show Cause. However, she has consulted her attorney on 2 matters - we currently have a pending Motion to Modify Child Support (for reduction). She testified at that hearing that she consulted her former attorney for that too.(Since she failed to complete the required paperwork for that hearing it has been continued, so the Show Cause will be heard before the Motion to Modify.) Since they are separate matters in separate courts, it seems to me that any fees the judge could order should be half of the total amount she has incurred.

I am interested in one other reply posted to this board - how hard is it to file a Motion to Recuse? We are going back before the judge that, when we filed for joint custody just last year, actually reduced my husbands visitation with his 4 children. There isn’t a better man on the planet: law enforcement officer, boy scout leader, excellent participative dad - homework, diapers, the whole deal. We even bought a house 30 houses away from his ex so the kids could ride the same school bus. The judge has made several high profile totally off the mark rulings that have made the press. Our confidence level in her impartiality is seriously compromised. Is it appropriate to file a Motion to Recuse?

Thank you for your work in this forum. It is truly a service to many and I appreciate learning through the trials and tribulations of others in the nasty, messy world of divorce.

Best regards,
Karen


#3

Dear kmchaos:

Greetings. First, I would argue that there is no way without a properly filed Attorney Fee Affidavit for us to know what she spoke with the attorney about and if it even cost her to speak with the attorney. Next, I would argue that the Motion to Show Cause is a DOM form in Wake County and that no guidance is needed from an attorney, and if she needed some, that you should not have to pay for the “hand holding.” Also, if she loses, no fees.

You can try to file a Motion to Recuse, which will be heard by the judge herself. I would warn you against this though, if you think it may bias her further against you. Best of luck.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
RosenDivorce.com
919-787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#4

Another mechanism you can use in attempt have new judge assigned to your case - in Wake County, at least - is a “Request for Reassignment.” This request is (or can be) made via a DOM form available on the NC Courts website at nccourts.org/Courts/CRS/Poli … nts/96.pdf.

On paper, at least, the Chief District Court Judge is the judge who rules on the reassignment request. In all likelihood the Chief District Court Judge consults closely with the assigned judge before making his/her ruling. My hunch is that these requests are rarely granted.

The advantage of a “Request for Reassignment” over a “Motion for Recusal” is that you spare yourself the time and expense of a court appearance. The downside is that you won’t have the opportunity to make any real-time arguments. Either way, if your request or motion is denied, you’ll be stuck with the same judge. As Janet pointed out, this judge will not look favorably upon your attempts to have her removed from the case.

You might consider asking yourself if the judge is truly biased, or is she merely exercising her discretion. Bias implies an inability or unwillingness to render a fair ruling based on the evidence presented, the facts of the case, and the applicable law. It is also characterized by judge having made up her mind before holding the hearing. Discretion, on the other hand, accords the judge wide latitude to act in the child’s best interest. You might disagree with the judge’s interpretation of “best interest.” Nevertheless, proper use of discretion is different than bias.

An “off the mark” ruling may or may not be indicative of bias. If the ruling was intentionally bad, then I think it’s bias (or worse). Otherwise, the dice just didn’t roll your way and you’re in the realm of the court’s wide discretion on custody and support issues. Litigating domestic issues is risky business indeed because you are asking a fallible human being


#5

Dear WakeDad:

Greetings. I agree with your assessment of the DOM form called a Request for Reassignment, but I would like to once again state that if you have lost a case or feel like you have lost a case - it is rarely because of the judge’s bias. Good luck.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
RosenDivorce.com
919-787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#6

A few questions if I may (Rosen represented us in the original proceeding a year ago)

  1. If the order says that the parties must agree on elective procedures (in this case braces) and the parties connot agree on the timing for when to get the braces because of financial constraints, does this constitute contempt and failure to comply with the court order? Can a show cause order be used to force a parent to pay for an elective procedure when the parents cannot agree?

  2. Can the plaintiff request legal fees on a show cause order if the are not being represented by counsel in court? Is it likely the judge will order the payment of legal fees when one party is trying to force his/her opinion on the other?

Thank you for the clarification. Dealing with this stuff is the pits