Getting the child’s items returned at the end of visitation

Recently I prosecuted a rule to show cause in which one of my client’s goal was to get her child’s items returned. The father’s visitation had been cut short and he failed to return the child’s clothes and electronics when the visitation ended. Since these were clothes and electronics that my client had purchased, and since, like most children, the child greatly enjoyed using these electronics, my client was quite annoyed.

Nothing in their custody agreement specifically required father to return the child’s items at the end of his visits. I sought to hold father in contempt, and get the items returned, by arguing in the supporting affidavit that my client had custody of the child and one of the “rights” of custody was the right to control the child’s personal items. It was the first time I had encountered this problem and thus the first time I had tried this argument.

The judge wasn’t buying it. As he noted,“One may not be convicted of contempt for violating a court order which fails to tell him in definite terms what he must do and the language of the commands must be clear and certain rather than implied.” Welchel v. Boyter, 260 S.C. 418, 421, 196 S.E.2d 496, 497 (1973). An order stating that my client had custody is not “clear and certain” that the father had to return the child’s items at the end of each visit.

We eventually settled the rule with the father agreeing to return the child’s items and further agreeing that he would return the child’s items at the end of each visit. As this is the first time in my twenty-plus years of family law practice that a parent has refused to return the child’s items at the end of a visit, it is unclear that this will be a frequent occurrence. Still, when negotiating custody/visitation agreements with flaky non-custodial parents it might be best to insist on language that, “The non custodial parent shall return the child’s items that were sent with the child at the beginning of the visitation period to the custodial parent at the end of each visitation period.”

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