North Carolina General Statute § 50-13.7 states that “[A]n order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.”
NCGS 50-13.7 states that an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. In fact, the Court of Appeals has consistently held that “the trial court commit[s] reversible error by modifying child custody absent any finding of substantial change of circumstances affecting the welfare of the child.” Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013) (quoting Hibshman v. Hibshman, 212 N.C.App. 113, 121, 710 S.E.2d 438, 443 (2011)).
Importantly, a finding of contempt will not lead to a modification of custody or visitation. As stated by our Court of Appeals in in Woncik v. Woncik, child custody “cannot be used as a tool to punish an uncooperative parent.” Only when the Court concludes that the interference with visitation was itself a “changed circumstance” is there merit to modify custody and/or visitation. Our Court of Appeals has stated that “A decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. To hold otherwise would invite constant litigation by a dissatisfied party so as to keep the involved child constantly torn between parents and in a resulting state of turmoil and insecurity. This in itself would destroy the paramount aim of the court, that is, that the welfare of the child be promoted and subserved.” (Davis v. Davis, 748 SE2d 594 (N.C. App 2013) citing Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968)).
In Davis v. Davis, the trial court made findings that the parties had a dispute about the custodial schedule and Defendant lost his temper and inappropriately physically disciplined the minor child. The Court still found that there was not a substantial change of circumstances sufficient for the Court to grant Defendant’s motion to modify custody. (“The trial court did not find that defendant's “inappropriate [ ] discipline[ ]” of his daughter rose to the level of a substantial change in circumstances affecting the welfare of the children. The trial court also did not find that the scheduling disputes constitute a substantial change of circumstances. Therefore, the findings of fact and conclusions of law are insufficient to support its requirement that defendant obtain anger management counseling and its modifications of visitation. Accordingly, we vacate those portions of the trial court's order modifying visitation and ordering defendant to attend anger management classes and we reinstate the visitation schedule set out in the 2003 custody order.”) Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013).
Thus, it is not necessarily easy to modify an existing order for child custody. To do so, you have to prove that a substantial change of circumstances have occurred that impact the minor child, and that it is now in the child’s best interests to have the custody schedule changed. A court cannot modify a child custody order just because you are dealing with a difficult person. That person may be difficult with you, and at the same time be a great parent for the child.
If you have questions about modifying a child custody order and need to speak with an experienced child custody attorney, please click here to contact Adkins Law.
Make sure you have planned ahead for your family by setting up an Estate Plan. Contact us today to schedule your Estate Planning consultation, 704-274-5677.
A living will is a legal document that guides your doctors, and health care agents (selected by you) regarding your wishes for medical treatment in the following situations:
The living will gives you the ability to tell your physicians and doctors your wishes when it comes to life-prolonging measures in these situations listed above. The living will is an essential piece of a person’s estate plan because we never truly know when we might be faced with a life threatening situation, where a living will is necessary.
A health care power of attorney is a legal document that names a person, and sometimes an alternate person who you authorize to make these health care decisions for you, in the instance you are unable to do so by yourself.
By planning ahead, you can make clear to others what type of treatment you want in most medical situations, this makes it easier for your family to make decisions during moments of grief and crisis. By creating and signing these documents it is a way to initiate a conversation with your loved ones about your wishes and is a way to be able to control what happens at the end of your life. We know it may be hard to think about moments where you are unable to make decisions for your health, but that is why it is most important.
A living will and healthcare power of attorney document is part of Adkins Law PLLC Estate Planning packages. Contact us today to find out what packages we offer for Estate Planning, and which is better for your family. Call us or text us to schedule an appointment.
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Depending on the ruling of the court, an alimony order can be for a set number of years or even life. In order to modify spousal support, whether that be alimony or post-separation support, significant changes are normally necessary. The termination of an alimony order is automatic upon the death of either party, remarriage of the dependent spouse, or cohabitation by the dependent spouse. That being said, what determines cohabitation in North Carolina?
According to North Carolina state law, cohabitation requires:
It is important to take notice that, although the court requires two people to essentially be living together in order to terminate an alimony order, that does not mean that they must be retaining the same residence. The dependent spouse and third party may each retain a separate residence and still be considered living together.
The second criteria the court will look to is whether the dependent and third party act like a married couple. There are numerous facts considered by the North Carolina courts. There is no one item that is required or determinative.
Some factors considered in determining cohabitation:
Although cohabitation is defined by statute, it is often a source of litigation in court. Seeing as the dependent receiving alimony has an incentive to alter behavior to avoid losing their monthly check, these types of cases may get a bit grey at times. This may include keeping a separate residence, limiting the nights spent together per week, not keeping their belongings at the other party’s place, not getting engaged, etc. This behavior can make it quite frustrating for the person ordered to pay. Often, testimony from a private investigator, phone records, and bank records help to establish cohabitation.
Control distribution of assets – You wouldn’t hand over your car keys to a child who has not had proper preparation driving, and chances are you would not want to hand over all your assets to a teenager either. But if both parents die at the same time, or while their children are still minors, the children would inherit all the assets upon their 18th birthdays. A trust allows you to specify how and when you want your children to inherit.
Protect assets from creditors – Placing an inheritance in a trust ensures that those assets are protected from your heir’s, or their spouse’s, creditors. A properly drafted trust can protect all your assets throughout your beneficiary’s lifetime from divorce, liability, lawsuits, and other judgments.
Protect inheritance from spendthrift heirs – Not everyone is good with money. If your heirs fall into that category, you can use a trust to ensure the assets are not frittered away due to spendthrift behavior.
Provide for children of prior marriage or relationship – You can use a trust to both provide for your current spouse and any children from a previous relationship. By doing so, you can prevent pain, confusion, and arguing, which may exist in blended family situations.
Provide for a special needs heir – Leaving assets outright to an heir with special needs could disqualify them from receiving important government benefits. Leaving those assets in trust bypasses this potential risk.
Avoid probate – Assets can pass to heirs without going through probate by using a trust, saving beneficiaries the time and expense of the probate process. Probate is an expensive, public, and unnecessary court process you can keep your family from having to deal with.
Protect privacy – Once a will is entered into probate, it becomes public record, and anyone may access information on what someone inherited. A trust, on the other hand, is a private document that protects your family’s privacy.
If you need to arrange a consultation with an estate planning attorney,contact Adkins Law or call (704) 274-5677.
What is a Premarital Agreement?
A premarital agreement, also called a prenuptial agreement or a “pre-nup,” allows for a couple to set the terms of their property rights for their marriage. North Carolina General Statute § 52B-4, provides for such rights which include: the rights and obligations of each of the parties in any property of either or both of them acquired, disposition of property upon separation or death, ownership rights in the disposition of the death benefit from a life insurance policy, the provisions in this agreement apply to any will or trust made, modification or elimination of spousal support.
Advantages of having a premarital agreement?
1) Protect your assets.
2) Protects you from assuming the debts of your partner.
3) Determine how the property will be passed down upon death.
4) Explains the financial rights and responsibilities during a marriage.
5) Help avoid long, costly disputes in case of divorce.
In what situations would you want a premarital agreement?
1) You are much wealthier than your partner.
2) You earn much more than you partner.
3) You are remarrying.
4) Your partner has a high debt load.
5) You own part of a business.
6) To prevent your spouse from overturning your estate plan.
If you wish to speak to a family law attorney regarding prenuptial agreements, contact Adkins Law.