The Book on Divorce in North Carolina is now available for digital download, in paperback, and as a Kindle Audiobook! Click below to order a copy!
Attorney Christopher Adkins just released his new book entitled The Book on Divorce in North Carolina. The book is designed to help the reader understand family law issues such as divorce, property division, child custody, child support, spousal support and alimony. Questions are answered regarding marriage counseling, affairs and how they impact separation, the process of divorce, child custody orders and agreements, calculating child support, and separation agreements.
During a divorce, many issues are intertwined, and the resolution of one is issue is in many cases, dependent upon the other. This is perhaps nowhere more true than with respect to the issues of child custody and child support. It is only understandable that regardless of the custody arrangement that the parties ultimately choose, parents want to ensure that they can adequately support their children as part of that arrangement. While the law requires that parents continue to support their children following a divorce, the custody arrangement that the parties choose (or that is ordered by the court) may have a significant effect on the amount of support that is to be provided.
Although divorce may end a marriage, parenthood is forever. And regardless of how they may feel toward their ex-spouse, most parents truly want to support their children – out of love, and not simply because it is legally required. As a result, child support is often one of the less contentious issues that couples negotiate during a divorce.
As most parents know, child support is a monthly payment, typically made by the noncustodial parent to the custodial parent to provide for the reasonable needs of the couple’s children. Under North Carolina law, this includes the biological children of the marriage, any children that the couple adopted together, and any children born to a relationship between the parties.
A child support obligation is usually long-lasting, until the children reach the age of eighteen or are otherwise emancipated. As a result, it is more than worthwhile for most couples to truly spend the time thinking through what child support and custody arrangements might work best for your family – and the two are distinctly intertwined. In North Carolina, there are two primary ways that child support can be determined – either in an agreement, which the parents negotiate and enter into together, or by a court, based upon the state statutory guidelines. In this chapter, we’ll discuss both of those options – what they entail, the advantages and disadvantages of each, and how your custody arrangement might affect those determinations.
Addressing Support by Agreement
As with almost all issues the must be resolved during the divorce process, child support can be determined by the parties by agreement. If you and your spouse are capable of communicating effectively and with an open mind, and are committed to working together toward the best resolution of your issues for your family, addressing support obligations in a separation agreement offers many advantages.
Choosing to set the support obligation yourselves provides more leeway to determine what works best for your family and your lifestyle. You can ensure that the agreement fits your family’s unique needs – even if those needs are different than those which are normally provided for under the legal guidelines. For example, in a separation agreement, the parties may decide that they want to extend support payments beyond the age of eighteen, address the obligation to pay for private school or college expenses, make payments on a particular timeline that works best for the parties, or implement any other number of specific conditions that work well for their particular circumstances.
A second advantage of choosing to set the support obligation in an agreement is that not only do you have the flexibility to determine the specifics of support in the first place – you also have the freedom and flexibility to make changes to the agreement as your life situation changes. Of course, both parties will need to be in agreement about those changes, but as long as that is the case, the agreement can be rewritten or modified at any time to ensure that the support provided continues to work best for the family’s life circumstances.
Yet another advantage of entering into an agreement is that generally, doing so means that couples will spare themselves a great deal of the expense and stress that they would likely have incurred by choosing to battle an issue out in court. For the most part during divorce, with respect to all issues, choosing to work together toward an agreement that works well for everyone involved is less contentious, and less costly. The effort is well worth it.
Clearly, then, there are many advantages to choosing to address child support by agreement. The question then becomes, how to draft an agreement that best fits your family’s circumstances? If two parents do decide to enter into an agreement regarding child support, it can be helpful to consider the following advice when negotiating child support payments:
Remember, that the ultimate goal of your negotiations is to ensure that your children have the same financial support that they would have received if you had remained married. Spend the necessary time talking with your attorney in detail about your children’s lives – their needs, their regular expenses, their health issues, and the lifestyle they are accustomed to. Be honest with your attorney about your income, your expenses, and your goals for your children’s future. Most importantly, go into the negotiations with an open mind. Be willing to communicate openly and compromise if necessary, but don’t hesitate to stand up calmly and confidently for the things that are truly important to you.
Court-Ordered Child Support
As with all issues in a divorce, if the couple is unable to come to an agreement on their own regarding child support, a court will make the determination for them. Sometimes, depending upon the dynamics involved in a relationship and the animosity that may be present between the parties, having a court decide the key issues is simply the best choice. While child support can seem like a complex issue to those unfamiliar with the legal system, there are fortunately detailed guidelines in place to help courts make the determination as to the amount of support that is appropriate in any given case.
The North Carolina Child Support Guidelines provide guidance to the court regarding support calculations, and can help parents roughly plan for and estimate what amounts they might be expected to pay. These guidelines are based on a shared income formula. The idea behind this method of calculating support is that child support should be an obligation that the parents share jointly – that is, that the children essentially receive the same percentage of their parents’ income that they would have received if the parents had remained married. Also factored into the amount of support that is ultimately awarded is the custody arrangement that the parties have, as we will discuss below.
As a court makes a determination with respect to support, a number of factors will be considered. Some of those factors include how much time the child spends in each parent’s household, which parent has primary custody, the income of each parent, and each parent’s ability to pay support. Other factors that the court might consider include:
Though in the vast majority of cases, courts use the North Carolina Child Support Guidelines in determining support obligations, there are some situations in which courts will deviate from those guidelines. Some of these circumstances include:
In those special situations, courts will typically make support determinations on the basis of the child’s actual needs and the expenses associated with those needs, as opposed to utilizing the formula set forth in the guidelines.
In the majority of cases, however, families who have child support obligations determined by the court will find that the court determines those obligations using the state support guidelines. These guidelines apply statewide, and are revised at least every four years to adequately reflect cost-of-living increases. Typically, there are three worksheets used for calculating support under the guidelines:
As indicated by the differing worksheets, child support, when awarded by a court, is directly affected by the custody arrangement that the parties have. If the parents have an arrangement where one parent is the primary physical custodian of the children and the other parent has less than 123 nights with the children, the parent who has primary custody will receive the maximum amount of support available under the guidelines. On the other hand, if the parents have a split custody arrangement (a somewhat rare arrangement where one parent has primary custody of on child and the other parent has primary custody of the other child), child support may be drastically reduced, or may not be awarded at all, as each parent would be responsible for the day-to-day expenses of the child that lived in their home. In a third scenario, if the parties essentially have shared custody – meaning that each parent spends at least 123 nights with the children each year, the amount of child support awarded might decrease or increase depending upon the amount of time that each parent spends with the child. It is also important to keep in mind that even if you do have equal amounts of time with your children, if one parent makes significantly more than the other, support may still be awarded, because child support is intended to be paid proportionately to income.
Clearly, the custody arrangement between the parties will have a significant effect on the amount of support awarded. Moreover, while the guidelines are generally adopted and used to calculate support, a court may choose to look beyond the guidelines and set a different amount if the particular and unique needs of the children require it. A court always has the obligation to do what is in the best interests of the children, and at times, that means looking outside of the guidelines at the whole picture of the child’s life to make a determination.
Regardless of whether the court ultimately determines the support obligation or the parties choose to decide it by agreement, after it has been determined, North Carolina law provides that one spouse can pay the support amount directly to the other at the required times, if that arrangement works well for both parties. In other circumstances, however, an intermediary might be helpful, and in those cases, child support can be paid through the North Carolina Child Support Centralized Collections (NCCSCC), which will then send the support collected to the receiving parent, either through direct deposit or via a debit card. Some couples choose this option in order to have a document record of all support payments which are made from one parent to the other, if a dispute should ever arise.
Beyond the Dollar Figure – A Look at the Emotions Behind Child Support and Child Custody
Regardless of whether the support amount is awarded by the court or decided upon by agreement, it is important not to underestimate the level of emotion that might be involved in these decisions, and the reactions that those emotions might cause. So much of divorce is emotional, and perhaps nowhere is this more true than with respect to issues involving children.
Divorce is a stressful time, and even when the divorce is over and the dust settles, emotions can still run high. It is important for all parties to remember that regardless of the ending of a marriage, the obligation to parent together for the good of your children remains. It is important, if you are the parent who is responsible for making child support payments, that you do so on time, and in full. Never withhold payment to “punish” the other parent – after all, the ones who are really being punished are your children.
On the other side of the coin, if you are the parent who is the primary custodian and the other parent falls behind on their child support payments, do not withhold visitation privileges until the support is paid, for the purpose of “getting back” at the other parent. While this may be tempting, and while it may feel good in the moment, you are harming your children in the long run, and potentially placing yourself in a position to incur legal consequences as well. If you are not regularly receiving the support that is due, let child support enforcement authorities address the issue of non-payment, and speak to your attorney about possible remedies.
Ultimately, when it comes to child support, the hope is that parents will always continue to do what is right and best for their children, regardless of their emotions or negative feelings toward the other parent. Both parents need to be realistic and practical about the custody arrangement they choose, and the support obligation they decide upon. Doing so is ultimately better for everyone in the end.
Without question, the “nuts and bolts” of the child support process and its interplay with the custody arrangement that the parties have might seem confusing at first glance, and this is certainly understandable, particularly for those who are not legal professionals and who are unfamiliar with the process. The good news, though, is that an attorney who is well-versed in the law and who frequently handles divorce cases will be able to guide you through the process, and advise you as to how the law might apply to your particular circumstances. The value of such legal advice cannot be overstated, particularly when it comes to something as important as matters involving your children. Together, you can reach the resolution that is best for your family.
 As a basic example, if, when the parents were married, they spent $1,000 per month on their children, and one spouse made 70% of the combined income, that spouse would be responsible for 70% of the support that the child would receive, or $700. Of course, there will be extraordinary expenses that may also factor into the calculation, but the idea, generally, is that parents continue to support their children in the same manner and in the same proportion as they would have prior to the divorce.
If you would like to arrange a child custody and child support consultation with an experienced child custody lawyer in Huntersville, NC, contact Adkins Law.
Often, in order to come to the best understanding of any topic, it is helpful to learn a bit about the history of that subject – how it came to be what it is, and why. Understanding the history of something in which we find ourselves involved can give us important perspective and understanding that we might not otherwise have. It is no different with legal matters, child custody included. Understanding the history of any topic gives us a better grasp of where we are today and why. Knowing how courts used to decide cases gives us an important perspective on how jurisprudence has shifted over the years– what the important factors used to be, and what they are now. As with so many legal and historical matters, the history of child custody is an interesting and complex one. As societal perspectives have shifted and culture has evolved, so also has the state of child custody in our country.
Children as Property of the Father
When Colonial Americans first settled in the United States, they followed the English common law at the time with respect to child custody. That common law typically granted custody of the children to the father following a divorce. This preference arose from the traditionally historic belief that women were essentially property, and had very few individual rights. Most “rights” that women had were in name only, and were derived from their fathers and husbands. Fathers had the legal right to physical custody of their children, which in those times might have included not only their biological children, but also young servant children, and orphaned children belonging to relatives as well. Often, the survival of a family depended upon the labor of all of these children, as well as the right to any earnings from the labor of their children, which might be very significant to the family’s finances. As a result, in the somewhat rare event of a divorce, the courts almost always awarded custody to the fathers.
With the rise of the Industrial Revolution, however, more and more families began to abandon the traditional farming lifestyle of the settlers for industrial jobs in factories and cities. This meant that fathers left the home during the day, while the mothers remained to take care of the children and run the day-to-day affairs of the household. It was at this point that fathers became more traditionally viewed as wage-earners, and mothers as caregivers.
It was also at this point in our history that “childhood” as we know it began to exist. Children who, in previous generations, would have been sent out to labor on the farm or at a trade began to experience days that were more largely focused on school and play, under the watchful eyes of their mothers at home, while their fathers went to work. These shifting perspectives began to influence custody decisions as well, both in England, and in the United States, which though independent by this time, continued often to look to England for guidance and vision on some legal matters.
The “Tender Years” Doctrine
In 1839, England passed the Custody of Infants Act. This law gave judges the authority to use their own discretion in custody cases, and permitted mothers to petition the courts for custody their children up to the age of seven. As societal roles continued to change and perspectives continued to evolve, Parliament extended the age to sixteen, pursuant to what it referred to as the “Tender Years Doctrine”. That doctrine was essentially a way of formalizing the belief that in children’s early years, they are best cared for by their mother. This principle was adopted by the majority of states in the United States as well, and was thereafter the prevailing law for the majority of the next century.
North Carolina, like the majority of the states in the country traditionally subscribed to the tender years doctrine. Essentially summarizing the doctrine in its holding in Spence v. Durham, 283 N.C. 671, 687, 198 S.E.2d 537, 547 (1973) the court stated:
It is universally recognized that the mother is the natural custodian of her young …. If she is a fit and proper person to have the custody of the children, other things being equal, the mother should be given their custody, in order that the children may not only receive her attention, care, supervision, and kindly advice, but also may have the advantage and benefit of a mother's love and devotion for which there is no substitute. A mother's care and influence is regarded as particularly important for children of tender age and girls of even more mature years.
This, indeed, was the prevailing belief and doctrine followed in the United States for nearly a century, until continually evolving cultural norms again precipitated a change. In the 1960s divorce rates began to surge, compared to those of previous decades. A number of factors played a role in this change, including the return of more women to the workforce, an increased interest on the behalf of child development experts in the important role that a father plays in a child’s emotional well-being and development, and the emergence of more egalitarian gender views, among others.
As all of these changes were happening, new conversations and debates about the role of each parent emerged. No longer was the mother seen as the only parent capable or willing to stay-at-home or provide primary care to the children. Indeed, father’s rights groups began to form across the country, as part of a larger ongoing movement for gender equality.
The Current “Best Interests” Standard
In 1977, the North Carolina General Assembly made the decision to do away with any presumption in favor of either the mother or the father, and officially adopted the best interest of the child standard. In pertinent part, that statute, N.C.G Gen.Stat. §50-13.2 states:
An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization, or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party and shall make findings accordingly. An order for custody must include findings of fact which support the determination of what is in the best interest of the child. Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent.
Essentially then, in the context of child custody matters, the focus on the child’s “best interests” means that courts are required to make decisions regarding custody and visitation with the overarching goal of ensuring the child’s security, happiness, health, and appropriate development into adulthood.
Under the best interest standard, courts have a significant amount of discretion in determining custody matters. On the one hand, it means that either party ideally has a fair and equal chance of obtaining custody, and that there is no preference for either party. And indeed, it is often ultimately in the child’s best interest to maintain a loving and close relationship with both parents. On the other hand, the equal opportunity for each parent to be awarded custody has also opened the door for what can often be bitter custody battles, as each parent tries to prove his or her case. Ultimately, the court ends up being faced with the often difficult decision of choosing a parent, and a household which will, in his or her judgment, best develop the child’s physical, mental, emotional, moral, and spiritual faculties. See In re Peal, 305 N.C. 650, 645, 290 S.E.2d 664, 667 (1982).
This understandably leads to the next logical question – what factors do courts consider when trying to determine what is in the best interest of a child? The answer is not necessarily definitive – in fact courts can consider a wide variety of factors – “all relevant factors” in fact. See In re Shue, 311 N.C. 586, 319 S.E.2d 567(1984). While that’s a very broad and open-ended realm of possibility, some of the factors frequently considered include:
Certainly, this is not always an easy decision for the court to make, especially when both parents are very involved in their children’s lives and devoted to their well-being. Ultimately, when the court enters its findings of fact, it should seek to address all characteristics of the parties with respect to their physical, mental and financial fitness to care for the child. See Phelps v. Phelps, 337 NC 344, 446 S.E.2d 17 (1994). Generally, in North Carolina, it is public policy for the courts to promote and encourage parent time with the children by both parents, if possible. See N.C. Session Law 2015-278 (Senate Bill 519).
As the court seeks to determine what is in the best interests of the children, it might ultimately decide on any one of a number of types of custody arrangements. It should be noted and emphasized that while courts may decide upon and order certain arrangements, instead of requesting that a court do so, the parties are free to negotiate and agree upon an arrangement that suits them best, instead. That arrangement can ultimately be anything that the couple decides works best with their lifestyle and for the needs of their children, and will of course ultimately be more personalized and provide greater flexibility than a court-ordered arrangement might be. Regardless of what route parties ultimately choose, however, understanding the basics of custody arrangements can be helpful as you move forward toward the next chapter of your life.
If you need to speak with an experienced child custody attorney in Huntersville, NC, contact Adkins Law to arrange a consultation.
It's true that divorce represents an ending of one relationship – but it also represents the beginning of another. Though you and your ex-spouse may no longer be husband and wife, you’re always going to be parents. You may be parenting from two homes instead of one, and it may look different than it looked before, but always, you’ll be two of the most important people in your children’s lives. As your children continue to grow, you’ll still be required to make decisions together for their well-being, to attend their important activities together, and to be present for the moments in their lives, big and small.
Regardless of the separate paths that your lives may take in other ways, you will always have this bond, and hopefully, the shared goal of continuing to be the best parents to your children that you can be. For the sake of your children, it is important to acknowledge the reality of this new relationship, and to do what you need to do to make it the best and most cooperative relationship that it can be. Though you may have feelings of animosity toward your spouse because of the end of your marriage, for the sake of your children, it will be important to work on dealing with those feelings and moving forward in a positive, and healthy way. That’s what this chapter is all about.
A Quick Look at the Co-Parenting Spectrum
Successful co-parenting - what does it look like, and how do you go about it? These are important and worthwhile questions to ask, and the answers will look slightly different for every family. For some parents, co-parenting seems to be relatively easy following a divorce, particularly if that divorce was low-conflict, cooperative, and amicable. These parents find it fairly easy to make the transition from one household to two. They are able to cooperate effectively, make decisions together about what’s best for their children, and generally manage the transition from one household to two with fairly minimal conflict.
In other situations, however, and particularly in high-conflict relationships, co-parenting can be very difficult. These parents may have struggled with a relationship that had marital misconduct of some kind - perhaps abuse, or addiction, or mental illness on the part of one spouse. In these cases, co-parenting can be very difficult and cooperating is not easy. There are these two ends of the spectrum and everything in between when it comes to co-parenting relationships. Wherever you find yourself on this spectrum, the good news is that with the right tools and a commitment to making an effort, you and your ex-spouse can find a co-parenting dynamic that works well for your family.
Failing to do so means that instead of co-parenting what you are effectively doing is “parallel parenting”. In a nutshell, this term refers to each parent raising the children in his or her own way without much communication with or cooperation from the other parent. Ultimately, while this may seem easier for the parents, it is not nearly as beneficial for the children. Making the effort to learn how to co-parent together is well worth it and in the best interest of the children that you love. Keeping that in mind, let’s take a look at what successful co-parenting looks like.
Elements of a Successful Co-Parenting Relationship
More than anything else, it is important to remember that the ultimate goal of co-parenting is putting your child’s needs first. Certainly, this is not always going to be easy. Divorce is difficult, and in almost every case, even those divorces which are amicable and go smoothly, there is some amount of emotional pain involved. It goes without saying then that redefining your relationship with your ex in this way for the sake of your children will mean putting aside your own emotional baggage and committing to focusing first and foremost on what’s important for your children.
With that in mind, here are some helpful tips for establishing and maintaining a successful co-parenting relationship:
Co-Parenting in High Conflict Situations
Certainly, any divorce is stressful for everyone involved in one way or another. Some divorces, however, are significantly more stressful than others. Those stressful divorces often, although not always, were precipitated by relationships that were difficult, stressful, and high-conflict long before the divorce itself occurred. There could be any number of reasons that this is the case.
It’s possible that domestic abuse existed in the relationship. In other cases, one spouse may have suffered from narcissistic personality disorder or some other mental issue that caused he or she to be particularly manipulative or controlling of the other spouse. It’s possible that one spouse committed adultery, or hid an addiction, or otherwise engaged in behaviors that were very damaging to the relationship, and ultimately, to the marriage. In still other cases, the conflict is not from any one form of “misconduct” by either spouse, it could simply be that emotions became so volatile and tense between the parties that even after the dust settled, it was difficult to truly put those emotions aside and cool down.
Whatever the reason, some co-parenting relationships are more high-conflict in nature. While this is unfortunate, the good news is that even in high-conflict situations, there are steps you can take to help ensure that you can still co-parent as successfully as possible. If you find yourself in a high-conflict co-parenting situation, if possible, try to:
The good news, though, is that in many cases, counseling can be very effective, for children, and for parents. Sometimes, those who go to counseling are pleasantly surprised to discover that a relationship which may initially seem very tense and unmanageable actually can become less tense and more amicable and cooperative over time. Moreover, even in situations where one spouse refuses to participate in counseling for whatever reason, it can still be beneficial for you, and for your children. Sometimes, no matter how much you might want to, you can’t change other people. You can change yourself, though, and you can take steps to ensure that you are pursuing the best for your emotional health and well-being.
If you have been involved in a high-conflict relationship for any period of time, counseling can be very beneficial, not only for your own healing, but also for continued growth. Sometimes, making a concerted effort to really explore the roots of a conflict and how it has impacted you can be extremely beneficial as you try to heal and move forward. A trained counselor can also give you helpful tools for establishing healthy boundaries, standing up for yourself when necessary, and maintaining your emotional well-being and strength so that you can be the best parent for your children, regardless of what your ex-spouse chooses to do.
Counseling can also be very beneficial and helpful for children whose parents are involved in a high-conflict relationship. Sometimes, children who find themselves in these situations have difficulty expressing themselves, and finding the right words and outlets for their feelings. A professionally trained child therapist can be very helpful to children in many ways, and making the effort to find one who is a good fit for your child’s personality is highly recommended.
While co-parenting in a high conflict situation will not always be easy, the good news is that it can be manageable. With the right tools and the necessary effort, you can find a situation that is manageable and workable for your family.
Leading by Example
Beyond simply being good for your children from an emotional standpoint, good co-parenting can also set a good example for your children. It can show them in a very practical and real-life way that even though people have difficulties and differences, they can still work together to solve problems and achieve goals and do what’s best for everyone involved. Particularly as your children get older, they will see this example and it will be very valuable to them in their own lives. Beyond giving them the gift of two parents who are invested and involved in pursuing their best interests, you are also giving them the gift of leading by example that they can carry into their own relationships later in life.
No matter what, making the transition from one home to two will not be without its difficulties, and it will certainly require some adjustment and adaptation from everyone. Although there may be some challenging moments and some growing pains, with a commitment and continual effort from both parents who want to co-parent successfully and work constantly toward that goal, you can do it. It is possible and likely that you can build a new relationship which, although different from the old one, will still be beneficial and special to your children. Making the effort is well worth it.
If you need to speak with an experienced child custody attorney in Huntersville, North Carolina, contact Adkins Law to arrange a consultation.
Child custody is one of the most emotionally difficult issues that most couples will face in a divorce. It can be difficult, even in the best of circumstances, to arrive at a custody arrangement that works well for your family, even without any complicating factors. One truth about life, though, is that circumstances can change quickly – circumstances that might require changes to even the most ideal of custody arrangements. Today, perhaps more than ever, relocation is one of those circumstances.
There are any number of situations that can prompt one (or both) parents to relocate. Perhaps one parent receives a promotion or a new job offer that’s simply too good to turn down. Maybe one parent falls in love, but the person lives across the country. It could be that a family member unexpectedly gets sick, and one parent decides to relocate to help take care of that person. Regardless of the particular circumstances, the opportunity to relocate arises fairly often. When you have children, and an existing custody arrangement in place, when this circumstance arises, it’s important to think carefully about how to handle it.
As you consider the possibility of relocating, you may wonder – how exactly might it affect the custody arrangement that you have with your co-parent? How accepting (or resistant) might your ex-spouse be regarding your move? What impact will the relocation have on the amount of time you can spend with your children – and on their emotional and mental health? All of these questions are important ones to ask, and as with any circumstances in life, it’s impossible to predict the future. What you can do, however, is try to prepare your children, and work cooperatively with your co-parent toward ensuring that the relocation process goes as smoothly as possible for everyone involved.
Practically speaking, then, what does this look like? Certainly, every circumstance will be different, and every family’s custody arrangement is unique. As a result, there’s no one-size-fits-all solution when one parent decides to relocate. Regardless of your circumstances or arrangement, however, if you want to relocate with your children, or if you want to relocate and have shared custody and/or visitation with your children in your new location, your first step should always be to consult with your ex-spouse.
While this may be a difficult conversation, as with any conversation of this nature, it is important to remain calm, open to questions, and display a willingness to listen and see your ex-spouse’s point of view. Thoroughly explain the reasons for your intended relocation, as well as your desire to remain actively involved in your child’s life. If you are able to do so in a calm and rational way, your ex-spouse may be understanding, and might agree to modify your existing custody agreement in a way that better fits your new circumstances and intended relocation. If you’re both on the same page, you have the freedom to modify any custody arrangement that you voluntarily entered into as you choose, and you may can make new arrangements regarding custody that better suit your lives and circumstances with the relocation in mind.
One generally sound piece of advice that we can also provide is that regardless of the custody arrangement you have, whether it’s an agreement or a court order, you must follow its terms until the other parent agrees to a change, or until the court orders one. Failing to do so is not only disruptive and detrimental to your children – it can also give the other parent an opportunity to argue that you are in violation of your custody agreement or in contempt of a court order. Courts generally frown on both. Following a divorce, you may need the future intervention of the court in any number of ways, and quite simply stated, you do not want the court to view you as someone with a lack of respect for authority and a willingness to follow the rules.
While renegotiating your custody agreement or returning to court to seek a modification might seem time-consuming and tedious, it’s absolutely necessary. All too often, those parents who decide to make a move without the express consent of the co-parent find themselves in contempt of court, and may also find themselves facing an ex parte custody action filed by their co-parent. This is an action in which one parent alleges that the other parent has removed the child from his or her home state without permission. If an order is granted, as a mechanism of enforcing the order, the co-parent would be able to enlist the help of law enforcement to retrieve the child. Needless to say, this is simply not a situation in which you want to find yourself involved.
You may find yourself wondering – what if I talk to my ex-spouse, and he or she simply doesn’t agree to my relocation, or to modifying the custody order? If this is the case, regardless of whether a court made the initial custody determination in your case or not, your only viable option is to file an action asking the court to decide the issue for you. Under no circumstances should you move away with your children if you have not either received the express written agreement of the other parent and a modification of the existing agreement, or unless a court enters an order which gives you the authority to do so.
If relocation is an issue that you are facing, or that you believe you might face in the future, it is always a wise choice to discuss your intended relocation thoroughly with your attorney prior to taking any action that could have long-term effects on your children and on your existing custody arrangement. Without question, jobs, relationships, and ailing family members are important – but as with anything important in life, it’s important to take the right steps to ensure that you’ve addressed all legal consequences that might arise from your move before you make it.
If you need to speak with an experienced child custody lawyer in Huntersville, NC, contact Adkins Law to arrange a consultation with a family law attorney.
In today’s world, we are more connected than ever. Technology has made it possible for us to reach across the globe in an instant. This not only means that we are more connected digitally – it also means that increasingly, people are making the decision to travel internationally too – whether it is for work, or to visit family and friends, or both. If you or your co-parent have any plans to travel internationally with your children, there are some special issues you might want to consider, depending upon your circumstances.
Generally, if you are simply taking a brief vacation with your child, most of these issues will not be your concern. If, however, one parent is a foreign national, or has family with strong ties to another country, there are certain issues you might want to consider. Some of those issues include:
It may be a good idea to register your child with the Children’s Passport Issuance Alert Program, which is a program of the Department of State’s Office of Children’s Issues. After you have done so, you will immediately be notified if the other parent applies for a passport for your child without your knowledge. Even if you think it unlikely that your ex-spouse might try to do so, it can never hurt to be cautious. Finally, after obtaining the passport, make sure that you keep it safe, and store it in a secure place at all times.
In an ideal world, all parents would act reasonably when taking their children abroad, and would never consider trying to subvert or sabotage a custody agreement by traveling internationally with a child against the other parent’s wishes. Unfortunately, though, it does happen, and it can never hurt to be prepared in the event that it does. If you believe that it may be a possibility that your co-parent will try to take your child to another country without your consent, it is extremely important that you consult with an attorney who understands the complexities of international custody law, and that you take all necessary precautions to keep your child safe and assert your legal rights.
If you need to speak with an experienced child custody attorney in Huntersville, contact Adkins Law to arrange a consultation with a family law attorney.
Among the many joys that life offers, having children, for many people is among one of the greatest, closely followed by getting to watch your children grow, and have children of their own. Most grandparents love their grandchildren deeply, and cherish the time that they are able to spend together. For the most part, this relationship is one that is very valuable and important for everyone involved.
For any number of reasons, there are times when grandparents wonder if they have legal rights to visitation with, or even custody of, their grandchildren. Sometimes, a divorce is involved, and other times it is some other event – a relocation, a separation, or a deterioration in the relationship that the grandparent might have with one of the parents – that causes the grandparents to lose time with his or her grandchildren, and wonder if there is any legal recourse available. In other cases, it is not so much that the parents choose to distance the children from their grandparents, as much as it is true that the parents are for some reason unable to care for the children adequately that causes grandparents to ask whether they might take custody of the grandchildren, either temporarily or on a permanent basis.
These issues can be legally complex, and are often very dependent upon specific factual circumstances. Beyond the legal complexities involved, these issues are also often very emotionally charged, as is often true when relationships with deep and lasting connections are involved. If one answer were to be provided, it would be this – generally, and for the most part, parents have the primary, and often the final say when it comes to what is best for their children. While it may be very difficult for many grandparents, this is true even when it comes to whether or not the children spend time with their extended family, and if so, how much time they spend.
According to both the United States Constitution and the laws of the state of North Carolina, parents are considered to have paramount rights when it comes to raising their children. This “superior rights doctrine” only makes sense, as parents typically know their children best, love them most, and have the right to raise their children in a way that they feel will serve their best interests. As a result, in the huge majority of cases, courts in North Carolina and across the country will typically strive to allow parents to maintain custody of their children whenever possible, and to make the decisions that they feel are best for their children.
There are, of course, some instances in which parents are simply unable or unwilling, for any number of reasons, to provide the safe and nurturing home that their children deserve. The parents may struggle with issues of addiction, abuse, mental illness, or other problems that simply make it impossible. In these situations, courts are forced to consider other options for the health and well-being of the children, and in these situations issues of grandparent custody often arise.
North Carolina law provides four statutes under which grandparents or other qualified third parties may seek to obtain visitation with or custody of children:
· N.C. Gen. Stat. §50-13.1(a) provides that, “Any parent, relative, or other person, agency, organization, or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided.”
· N.C. Gen. Stat. §50-13.2(a) reads, “A biological grandparent may institute an action or proceeding for visitation rights with a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom are related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights. A court may award visitation rights if it determines that visitation is in the best interest of the child.”
· N.C. Gen. Stat. §50-13.2(b1) states that, “An order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate. As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or relative of the child where a substantial relationship exists between the grandparent and the child …”
· N.C. Gen. Stat. §50-13.5(j) provides that, “In any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to G.S. 50-13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion deems appropriate. As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.”
Prior to being able to seek custody or visitation under any of these statutes, however, the person seeking custody must establish that he or she has “standing” to do so. Standing essentially means that the person seeking custody has in interest or a right which is recognized and protected under the law. Without standing, a court will not hear a case.
· Visitation: For grandparents who want to seek visitation, the best (and usually only) opportunity to do so is to intervene in an already pending child custody action. In other situations, a court might previously have made a custody determination, but a request for modification of custody might be filed for any number of reasons.
As the statutes above indicate, a “grandparent” is defined as “a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child.” Essentially, this means that if the child’s biological parents passed away, or had their parental rights terminated for some reason, and another unrelated person adopted the children, then the grandparents cannot intervene. If the grandparent is allowed to intervene, however, in order to have a chance at being granted visitation with the grandchildren, they must demonstrate that a “substantial relationship” exists between the grandparents and the grandchildren. Unfortunately for grandparents eager to secure visitation time with their grandchildren, the term “substantial” is not defined by the statute. It is ultimately up to the court to view the evidence and make a determination as to the nature of the relationship.
Regardless of the statute under which the grandparent ultimately seeks visitation, it is important to realize that in making its determination, the court will always seek to serve the “best interests” of the grandchildren, which means considering a wide range of factors concerning the child’s physical, emotional, and mental health and well-being. It is also very important to remember that simply seeking visitation does not mean that it will necessarily be granted. Unfortunately, it is all too often the case that grandparents get their hopes up about visitation, only to find that a court refused to award it. Generally, courts are reluctant to interfere with parental rights in any way, and that includes ordering visitation, unless the proof is clear that it is warranted and in the best interests of the grandchildren involved.
· Custody: As the above statutes indicate, in North Carolina, in order to seek custody of your grandchildren, you must be able to demonstrate to the court that the child’s parents are unable to fulfill their parental duties, which essentially means that you must establish that the parents have taken actions that are inconsistent with their paramount constitutional right to custody of the child(ren). If you are seeking custody, as opposed to merely visitation, you do not need to wait to intervene in an existing action – pursuant to N.C. Gen. Stat. §50-13.2(a), you may file an original action on your own. While there are different ways to meet this burden of proof, in some cases grandparents may show that an unfit parent may:
o Have abandoned their child;
o Have continually neglected their child;
o Have abused their child;
o Have shown an ongoing pattern of substance abuse;
o Have decided to voluntarily give up custody of their child;
o Be unable to provide a safe and nurturing home for their child;
o Have a proven history of domestic violence;
o Be unable in other ways to provide the safe and nurturing home that the child needs to grow and thrive.
As is the case with seeking visitation, however, obtaining custody of your grandchildren in a situation where the parents are not unfit is highly, highly unlikely.
Regardless of whether you intend to seek custody of, or visitation with your grandchildren, the most important first step in doing so is to consult with an attorney who understands the complexities of the law and how they might apply to your particular circumstances.
If you need to speak with an experienced child custody attorney in Huntersville NC, contact Adkins Law to arrange a consultation with a family law attorney.
One question that we are often asked, as unfortunate as it may be is, “What happens if my ex refuses to follow the court-issued custody order?” While no one wants to believe, after going through a lengthy custody battle in court that one spouse will simply disregard the order, this does happen in some cases. Or, in other cases, the parties begin by following the courts orders only to later, after some time has passed, have second thoughts or simply start disregarding small things and eventually reach a point where the relationship and respect for the rules has broken down to the point that one party is wondering what legal remedies they may have available. The good news is that there are legal remedies available in these cases.
First and foremost, is important to realize that court orders are enforced differently than separation agreements. When a couple has a separation agreement, that is considered a contract between the parties, and when that contract is violated, the remedy is a breach of contract action, or filing a brand-new court action to determine child custody. By contrast, when a court has entered the order, the court has full authority to enforce that order. Prior to beginning any legal enforcement process, we would advise you first to attempt to discuss the matter with your ex-spouse and come to a resolution. As we have discussed throughout this guide, going to court is time-consuming and stressful, not to mention expensive. If matters can be worked out on your own, that is often the best avenue to achieve results in the fastest and less stressful way possible. In some circumstances however, one spouse simply won’t listen to reason, and returning to court will be necessary.
If you wish to return to court to enforce an order, you can always request that the court modify the custody arrangement, readjust your parenting plan, or give you extra days to make up for time you may have lost with your children as a result of the other parents failure to follow the order. You may also request that the court direct the other parent to pay your court costs and attorney fees for this effort. If however, attempts to modify your custody agreement or seek to be awarded lost time and costs fail, you may have to take more drastic measures.
In such cases, you can file a motion asking the court to hold the other parent in contempt of the custody order. Essentially this is a way of notifying the court that the other party is disobeying the court’s order and asking the court to find that the other parent has purposefully done so, which is considered a crime in North Carolina. some of the more serious custody violations that a court may look at when determining whether or not to find a party in contempt include:
If the other parent has engaged in any of these behaviors, it is important to try to keep and provide clear records of these violations. It may mean writing them down on a calendar keeping a journal with times, dates, and a description of the problem. If you have ever had to contact the police for any reason with respect to the other parent’s behavior, keeping a copy of those reports can also be tremendously helpful. Saving text messages, emails, and phone logs can also be beneficial. Being able to clearly document of violation of the custody order will be helpful in making your case to the court.
If a court finds that a party is in contempt, it may have severe consequences depending upon the nature of the contempt, including jail time. This is not to mention that one party might lose their custody privileges entirely or have them severely curtailed. In the majority of cases, you want to consider filing for contempt as a last resort. Nevertheless, for some parties it is necessary and it is the only path forward. It is important to consider carefully whether this sort of action will best serve your family and your children in the long run, and it is always important to seek the legal advice and assistance of a competent and knowledgeable attorney before doing so.
If you need to speak with an experienced custody attorney in Huntersville, contact Adkins Law to arrange a consultation.
Mediation is one of the most commonly used alternative methods of dispute resolution during the divorce process. Mediation is an out-of-court negotiation process that takes place between the husband, wife, and a neutral third-party called a mediator. Typically, the third-party is a retired judge, a family law attorney, or someone else trained in dispute resolution techniques. Often, the parties will also be accompanied by their attorneys to assist them in understanding the law and what effect their choices might have from a legal perspective. One important thing to remember though, is that during a mediation the person conducting the mediation will not and cannot provide legal advice to the parties.
There are a number of advantages to choosing mediation, including:
Of course, as with so many types of legal processes, no matter how many benefits a process may have, there are typically some downsides too. When it comes to mediation, some of the downsides include:
In the end though, despite some of its negatives, mediation can be extremely effective in helping you and your spouse to work toward coming up with creative and effective resolutions, tailored to your particular circumstances. By way of example, perhaps one parent has a very demanding work schedule that requires a great deal of travel at certain times of the year. A well-trained mediator can help couples work toward creating a unique custody schedule that fits their situation. A judge, by contrast, will rarely have the time or ability to do that. Instead, courts often just try to split custody as evenly and expeditiously as possible, without as much attention to the details of the family’s personal life.
Contact Adkins Law if you want to learn more about mediation and the mediation process. We can arrange a consultation with an experienced family law attorney conveniently located in Huntersville.