How to File a Motion for Contempt in NC Child Custody

To file a motion for contempt in NC child custody, you draft a verified “Motion for Order to Show Cause and Motion for Contempt” that identifies each provision of the existing custody order the other parent willfully violated, sign it before a notary, file it with the clerk of court in the county that entered the order, arrange for the other parent to be served at least five days before the hearing, and then present your evidence to the judge. North Carolina General Statute 50-13.3 makes custody orders enforceable through contempt, and the penalties can include jail time, fines, or both.¹ You can do this without a lawyer, but the procedural rules are strict and the details matter.

Decide Which Type of Contempt Fits Your Situation

North Carolina has two separate contempt tracks, and you need to choose before drafting.

Civil contempt is forward-looking. Its purpose is to force compliance with the custody order going forward. A judge can jail the other parent, but only for as long as they keep defying the order; once they comply, they must be released. To win civil contempt, you must show four things: the custody order is still in force, compliance would still serve the order’s purpose, the violation was willful, and the other parent has the ability to comply or to take reasonable steps toward compliance.²

Criminal contempt is backward-looking. It punishes a past violation. Penalties can reach 30 days in jail, a fine up to $500, a censure, or some combination.³ The same conduct cannot be punished as both civil and criminal contempt.²

Most parents filing on their own choose civil contempt, because the goal is usually to get the custody schedule working again rather than to punish. The rest of this article follows the civil contempt path, though most of the preparation and evidence steps apply to either.

Make Sure You Have Grounds

Contempt requires a clear existing custody order and a willful violation of its terms. Willful is the operative word. The other parent must have known what the order required and intentionally failed to follow it without a legitimate reason. A single missed exchange caused by a genuine emergency is not the same as a pattern of refusals.

Violations that commonly support a motion include:

Repeatedly refusing the other parent’s scheduled parenting time
Keeping the child past the designated return time or date
Moving the child out of the area without required consent or court permission
Making major medical, educational, or religious decisions unilaterally when the order requires joint decision-making

Judges look for a pattern of deliberate non-compliance or a single serious violation. The more specific the custody order is about what each parent must do, the easier the willfulness element becomes.

One boundary worth noting: if your child faces a substantial risk of bodily injury, sexual abuse, or being taken out of state to avoid the court’s authority, the standard contempt process is not the fastest tool. G.S. 50-13.5 allows a temporary emergency custody order without advance notice to the other parent in those narrow circumstances.⁴ Short of that bar, use the contempt process described here.

Draft the Motion

The document is usually titled “Motion for Order to Show Cause and Motion for Contempt,” though the exact format varies by county. North Carolina does not publish a single statewide form. Some judicial districts do provide templates; Judicial District 1, for example, publishes a packet with instructions.⁵ Call your local clerk of court and ask whether your county has a preferred form.

Under G.S. 5A-23, the motion must include a sworn statement or affidavit setting out the reasons the other parent should be held in contempt.⁶ In practice, this means the motion has a verification section you sign before a notary public. Clerks of court typically do not offer notary services, so plan to visit a notary before you go to file.⁵

Include the case file number and the date of the original custody order. Then, for each alleged violation, quote or cite the specific provision of the order and describe exactly how the other parent violated it, with dates. General complaints about the other parent’s parenting will not carry a motion. Every allegation should tie to a particular paragraph of the order.

Gather Your Evidence Before You File

Evidence built before filing usually decides the hearing. Keep a written log of every incident: the date, the time, what the order required, and what actually happened. Attach documentation wherever you can. Text messages and emails in which the other parent cancels, refuses, or delays exchanges are often the strongest proof because willfulness comes through in their own words. Voicemails, screenshots, and timestamped photos also help.

Firsthand witnesses add credibility beyond your own testimony. A grandparent who watched a refused hand-off, or a daycare worker who can confirm the child was never picked up on the scheduled day, can testify at the hearing. Tell any potential witnesses early that you may need them to appear.

File With the Clerk of Court

File the notarized motion with the clerk of court in the county that entered the original custody order. The clerk will charge a filing fee. Fees vary by county, so confirm the current amount by phone or through the North Carolina Judicial Branch website before you go.

If you cannot afford the fee, you can petition to proceed as an indigent using Form AOC-G-106.⁷ You automatically qualify if you receive food assistance benefits, Work First Family Assistance, or Supplemental Security Income, or if a legal services organization represents you. A judge or clerk can also approve the waiver if you show you are unable to advance the required court costs.⁸

Bring the original plus at least three copies: one for the clerk to stamp and return to you, one for service on the other parent, and a spare. Some counties want more, so ask when you confirm the fee.

Serve the Other Parent

Once filed, the other parent must receive formal notice of the motion and the hearing date. North Carolina requires at least five days between service and the hearing unless the court finds good cause for a shorter period.⁶

Under Rule 4 of the North Carolina Rules of Civil Procedure, you have several options:

Sheriff’s office personal delivery, for a per-person service fee
Certified mail with return receipt requested, addressed to the other parent
Registered mail
The other parent’s voluntary acceptance of service

Sheriff service and certified mail are the most common.⁹ Keep the proof-of-service document. You will need it at the hearing to show the judge that the other parent received proper notice.

At the Hearing

The judge is the finder of fact. There is no jury. You carry the burden of proof.⁶ For civil contempt, the standard is preponderance of the evidence: more likely than not that each element exists. For criminal contempt, the standard is beyond a reasonable doubt.

You present your evidence first. Take the judge through each violation in order: point to the specific provision of the custody order, explain what should have happened, and show what the other parent did instead. This is where your dated log and documents do the work. If you have witnesses, they testify during your portion of the hearing.

The other parent then responds. Common defenses include that the violation was not willful, that they misunderstood the order, or that they lacked the ability to comply, which is a recognized defense under G.S. 5A-21.² The judge must make a specific finding on each element before entering an order.

If the other parent does not appear and you can prove proper service, the judge can proceed without them. A no-show does not automatically produce a contempt finding, but your evidence goes uncontested, which improves your odds considerably.

You are not entitled to a court-appointed attorney in a civil contempt proceeding, even if incarceration is possible.¹⁰ You can hire your own, and some courthouses have self-help centers, but do not plan on one being appointed for you.

What the Judge Can Order

If the judge finds civil contempt, the order must specify exactly what the other parent has to do to purge the contempt.¹¹ Typical outcomes include:

Make-up parenting time to compensate for time you were wrongfully denied
Jail time of up to 90 days for a single act of disobedience, with total imprisonment for the same violation capped at 12 months; the parent must be released as soon as they meet the purge conditions²
Payment of your reasonable attorney’s fees, if you acted in good faith and lacked sufficient resources to cover the cost of the case¹²

When You May Need a Modification Instead

Contempt is the right motion when the order itself is fine but the other parent is ignoring it. If the real problem is that circumstances have changed and the order no longer works, you need a custody modification, not contempt. A court generally cannot use a contempt proceeding to rewrite custody.

Sometimes both apply. A parent who keeps blocking visitation may be in contempt of the current order and also showing the kind of change in circumstances that supports modifying custody. You can file both motions. The contempt addresses the past violations; the modification addresses the future arrangement. If the other parent’s behavior suggests they will keep violating the order no matter what, changing the arrangement may protect your child more effectively than repeat contempt filings.

1
North Carolina General Assembly. North Carolina Code Chapter 50 – 50-13.3 Enforcement of Order for Custody
2
North Carolina General Assembly. North Carolina Code 5A-21 – Civil Contempt; Imprisonment to Compel Compliance
3
North Carolina General Assembly. North Carolina Code Chapter 5A – Contempt – Section 5A-12
4
North Carolina General Assembly. North Carolina Code Chapter 50 – 50-13.5 Procedure in Actions or Proceedings for Custody of Minor Children
5
North Carolina Judicial Branch. Judicial District 1 Motion and Order to Show Cause Instructions
6
North Carolina General Assembly. North Carolina Code Chapter 5A – Contempt – Section 5A-23
7
North Carolina Judicial Branch. Petition to Proceed as an Indigent
8
North Carolina General Assembly. North Carolina Code Chapter 1 – 1-110 Suits by Indigent Persons
9
North Carolina General Assembly. North Carolina Code 1A-1, Rule 4 – Process
10
Legal Information Institute. Turner v. Rogers
11
North Carolina General Assembly. North Carolina Code Chapter 5A – Contempt – Section 5A-22
12
Justia Law. North Carolina Code 50-13.6 – Counsel Fees in Actions for Custody and Support of Minor Children