• More on Law Enforcement Involvement in Custody Cases

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    More on Law Enforcement Involvement in Custody Cases

    In my earlier blog post, Ordering Law Enforcement Officers to Enforce a Child Custody Order, Jan. 15, 2016, I discussed North Carolina case law indicating that a trial court’s authority to order law enforcement to assist in the enforcement of a child custody order is very limited. The General Assembly recently enacted legislation to clarify that the warrant provision in GS 50A-311 is a tool available to trial court judges seeking to enforce North Carolina custody orders as well as orders issued in other states and countries.

     NC Case Law

    In re Bhatti, 98 NC App 493 (1990) and Chick v Chick, 164 NC App 444 (2004), both reversed trial court orders requiring that law enforcement officers “assist” in the enforcement of a custody order. In both of those situations, the custody orders being enforced were issued by courts in other states. The court of appeals held in both cases that the trial court had no authority to order law enforcement to assist, noting that GS 50-13.3 provides that custody orders are enforceable through “traditional contempt proceedings.” The court in Chick acknowledged GS 50A-311, a provision in the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA) which allows a court to issue a warrant directing law enforcement to take physical custody of a child when a child is in imminent danger or likely to be removed from the state, but held that the trial court in that case had not made the findings of fact required to invoke the authority in that statute. In both Bhatti and Chick the court of appeals stated “we [are] unaware of any statutory basis for invoking the participation of law enforcement officers in producing the children.”

    GS 50A-311 Warrant for Physical Custody

    In that earlier blog post, I suggested that the warrant provision in GS 50A-311 could be interpreted to apply to cases involving North Carolina custody orders rather than limited to the enforcement of out of state orders. However, many attorneys, judges, and law enforcement officers remained uncertain that this provision in Part 3 of the UCCJEA, the part of the UCCJEA clearly addressing primarily the enforcement of custody orders from other states and countries, could be read broadly to apply to North Carolina orders. This lack of clarity was especially troubling to law enforcement officers, who need to know their authority to act in these cases is unambiguous and firmly grounded in the law. The recent legislative amendment appears to resolve the issue.

    The Legislative Amendment

    S.L. 2017-22 (S53) applies to orders entered on or after Oct. 1, 2017 and amends GS 50-13.5(d)(3) to state that:

    “A temporary custody order that requires a law enforcement officer to take physical custody of a minor child shall be accompanied by a warrant to take physical custody of the child as set forth in GS 50A-311.”

    In addition, the legislation also amends GS 50A-311 to clarify that:

    “An officer executing a warrant to take physical custody of the child, that is complete and regular on its face, is not required to inquire into the regularity and continued validity of the order. An officer executing the warrant pursuant to this section shall not incur criminal or civil liability for its due service.”

    The process for issuing a GS 50A-311 warrant

    The amendment appears to provide that a trial court can order law enforcement to take physical custody of a child to enforce a temporary custody order if the court issues a warrant pursuant to the provisions in GS 50A-311. That statute provides that a petitioner seeking enforcement of a child custody determination “may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from this State.” The warrant may be issued “[i]f the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this State.

    So the statute does not allow the warrant to be issued upon affidavits or verified pleadings alone. Instead, the court must receive actual testimony about the need for the warrant and the warrant may issue only if the court concludes the child is in imminent danger of serious physical harm or removal from the state.

    If the warrant is issued, GS 50A-311 appears to require an expedited hearing. The statute states that upon issuance of the warrant, the petition seeking enforcement of the custody order “must be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible.”

    The warrant itself must:

    “(1)        Recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based;

    (2)        Direct law enforcement officers to take physical custody of the child immediately; and

    (3)        Provide for the placement of the child pending final relief.”

    In addition, the warrant can order “conditions upon placement of a child to ensure the appearance of the child and the child’s custodian.”

    The statute provides that a warrant to take physical custody of a child is enforceable throughout this State and specifies that “[i]f the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.”

    Cheryl Howell is a Professor of Public Law and Government at the School of Government specializing in family law.

    3 thoughts on “More on Law Enforcement Involvement in Custody Cases”

    • Mona Leipold says:

      What are the implications of this warrant provision for DSS seeking law enforcement assistance in getting physical custody of a child through a nonsecure order?

    • Claudia parnell says:

      I can honestly sit here and tell you how much I like to read what you publish. There are general statutes and legislation revises them periodically.. but the one thing that overrides any law is this…. MONEY..Forget the law when you do not have money. How does a judge in Bladen county sign an Exparte 2 months and 10 days later for a man that was 1st served with a restraining order on behalf on his own son and the mother made GAL. Better yet.. how did a judge override a therapist and CPS? Then if and when you do get the money to pay for an attorney.. then you are trying to hire the best manipulator and liar in the world to represent you. Who cares about the written law? because it all boils down to the person that is serving the law.

    • Marybeth Smith says:

      Thank you for always keeping us so well-informed and current on the law. You are invaluable to those of us who practice family law. Hope you are doing well!!

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