A parent is not in contempt of a custody order by failing to force a child to return to the other parent’s custody where it is not in the child’s best interest to be forced into visitation.
We affirm the trial court’s denial of mother’s motion for civil contempt for father’s alleged violation of the custody order, as noncompliance was attributable to the parties’ child’s refusal to return to her mother’s custody.
The trial court’s first custody order granted primary physical custody to mother and severely curtailed father’s visitation and decision-making authority based on past misdeeds. Six years later, the trial court modified its custody order increasing father’s custody time after finding father’s behavior had improved and the children wished to spend more time with him.
A year later, mother moved for civil contempt, alleging father attempted to alienate the children from her, that the children wished to no longer return to mother’s custody, and that father imposed no consequences for their refusal. After a remand, the trial court entered an order declining to find father in civil contempt.
We rule that, although the trial court’s language in its order is confusing, it did not misapprehend the law to place the burden of proof upon mother rather than upon father as the alleged contemnor. We note that, during the hearing on the order to show cause, the trial court directed father to present his evidence first, as he had the burden of proof. We find that father met his burden to show why he should not have been held in contempt.
We agree with the trial court that neither prior case law nor its custody order created an implied obligation upon the parties to force their children’s visitation with the other parent. We note that the trial court’s findings of fact rejected mother’s allegations that father engaged in a course of conduct designed to alienate the children from mother; instead, the trial court found that father took reasonable measures to comply with the custody order and any noncompliance was due solely to the party’s daughter’s refusal to comply.
We note that the trial court also found that it was not in the daughter’s best interest, due to her depression and self-harm exacerbated during mother’s periods of custody, to force visitation. Thus, we rule that father was not willfully disregarding the custody order by failing to use discipline or physical force to force his daughter to return to mother’s custody.
Grisson v. Cohen (Lawyers Weekly No. 011-313-18, 35 pp.) (Stroud, J.) Appealed from Mecklenberg County District Court (Matthew J. Osman, J.) Preston O. Odom, III and Jonathan D. Feit for appellant; H. Stephen Robinson, Kevin L. Miller, and Tom Bush for appellee. N.C. Ct. App.