Recourse - failure to return child


#1

I live in New Hanover County and have an order filed with the courts that state that each Christmas I get my child from the time school ends until Christmas at 2pm. My ex spouse then has our daughter from Christmas at 2pm until the day before school resumes.

This year my ex feels the order is being interpreted incorrectly, and instead of returning her to me at 2:30 on Friday (today) he has informed me he is keeping her until Monday. My attorney has advised that my remedy is contempt of the order, and he is wrong in his interpretation. I know from previous legal battles that this can take months, if not a year to be heard. I am okay waiting for my day in court given my ex’ irrational behavior holding our daughter from me. However I am worried that he is going to try to sabotage a vacation that we have scheduled in January should he be served with contempt orders.

The way our custody is set, my ex-spouse has our daughter every Wednesday evening until the following Thursday morning. We leave on a non-refundable, very expensive Disney cruise a day after I am suppose to get her back from him. Given the fact that he is keeping her now, even knowing that he could possibly face contempt, makes me very uneasy about what he is willing to do in the future with our trip.

If he would keep her the Thursday of the week of our trip do I have any other quick/emergency recourse with the courts to get her back? We do not have a law enforcement clauses in our order. Is there anything I can do now to ensure he doesn’t attempt to ruin the vacation? What is the statue of limitations on filing contempt charges regarding this Christmas visit? Could I wait and file it after we return from our vacation?


#2

Your attorney is correct in that your legal recourse is to file a motion for order to show cause and seek to have him held in contempt. You can wait and file this motion upon your return from your vacation. NC Gen Stat § 5A-21 provides:

(a) Failure to comply with an order of a court is a continuing civil contempt as long as:
(1) The order remains in force;
(2) The purpose of the order may still be served by compliance with the order;
(2a) The noncompliance by the person to whom the order is directed is willful; and
(3) The person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable the person to comply with the order.