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

Posted Wednesday, January 21st, 2015 by Gregory Forman
Filed under Contempt/Enforcement of Orders, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

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.”

5 thoughts on Getting the child’s items returned at the end of visitation

  1. Greg –

    Interesting theory of contempt, though I’m not too surprised the judge ruled that way. I have encountered this problem fairly often, and I have added the type of language you describe in custody agreements to combat the problem. I see it most frequently with a parent not returning clothes. It seems this behavior is a misguided last ditch effort to try to exert some modicum of control over the other parent.

  2. Sounds like a sound addition to custody orders and agreements.

  3. Ryan took the words right out of my mouth, from start to finish, both with regard to his lack of surprise–it’s hard to find willfulness when the obligation is unclear–and to the pop-psych analysis of why people withhold clothing.

    Insofar as the returned-item language is concerned, I too have added same to agreements, but only when the circumstances of the case and history of the parties demand. It has not become so commonplace as to be promoted to boilerplate.

    Still, I applaud you for trying, assuming of course that you made the potential pitfalls clear to your client beforehand. I lack the cojones to be as bold; it’s gotten to the point where I will not include a violation “count” in a Rule to Show Cause unless I can almost guarantee to show willfulness — going three-for-four on Rule “counts” can have a chilling effect on fees awards.

  4. Conrad Falkiewicz says:

    I had so much of the clothing not being returned problem that I started putting in language that required the non-custodial parent to keep and maintain sufficient clothing and personal items for the child so that the only thing going with the child were the clothes being worn at the time…the child never came back naked. It seemed to work better than a provision to return clothing.

    1. Louis says:

      I recently have custody of my son…no courts are involved yet. His mother refused to send any of his clothing and has threatened she gave it away to charity not sure if that’s true or not. What can I do?

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