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.
As with any legal process in court, a custody action will begin with paperwork and filing. Prior to that, however, you should be certain that the court has the authority to hear your case. North Carolina, like most states in the country, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The UCCJEA provides rules regarding which courts will have the authority to make decisions about custody matters. According to the UCCJEA, the court that makes these decisions must be a court in the “home state” of the children involved.
Under the UCCJEA, North Carolina may be a child’s “home state” if:
Once a North Carolina court has jurisdiction over a child custody matter, it may exercise that jurisdiction until there is no longer a significant connection to North Carolina, or when no child or parent continues to reside in North Carolina.
Typically, to begin the process of a court ordered custody arrangement, one party will file a request with the court for a custody determination, and the other spouse will be served with that paperwork. If it is determined that the court has proper jurisdiction and the necessary paperwork has been filed, the spouse who has been served will usually have 30 days to file an answer and then the case will be underway. Initially, the parties and their attorneys might file motions for temporary custody or a temporary parenting arrangement. These temporary arrangements will simply remain in place during the time that the custody action is pending so that the parties know where the child will live while they are waiting for the matter to be heard by and decided by the court. Each county has slightly different procedural rules as to how it hears and schedules these particular motions, so consulting with an attorney who is knowledgeable and experienced in the area that you live in is important, and can be tremendously helpful.
After the necessary paperwork has been filed and the case is underway, the parties will be required by North Carolina law to go to mediation to attempt to work out their custody disagreement before the case will be scheduled for trial. Parenting classes may also be ordered, depending upon the circumstances. If mediation isn’t successful in helping to resolve the issue, the court will ultimately make the decision, and the parties will proceed with presenting their evidence to the court.
When a court is making a custody determination, North Carolina law requires that court to make its decision with the “best interests” of the child in mind. Understandably, we are often asked - what exactly does this mean? It’s a good question. Before we dive into the nuts and bolts of the best interest standard, it’s important to keep in mind that generally, if both parents are involved and active in the child’s life – if both parents are good parents who nurture the child and set a good example, then a judge is going to have a great deal of latitude in making a decision on custody, and will typically try to ensure that the child gets to spend time with both parents.
While the court does have a great deal of latitude and discretion in determining what is in the best interest of the children when making a custody termination, some of the factors that it might consider include:
As we noted very early on in this guide, gone is the “tender years” doctrine that gave a preference to the mother over the father. Today, there is no preference in the eyes of the law – instead it is generally accepted that it is healthy and beneficial for the child to receive love and care from both parents and to spend time with both parents when possible.
As the court attempts to make its determination as to what is in the best interest of the children with respect to custody, it will examine the conduct of both parties, and the evidence presented by the parties including the testimony of witnesses, and any pertinent family history. As noted, the court may also choose to interview the children if they are of an age where they are able to express a rational opinion. Depending upon their ages and the family dynamic, the court may choose to interview them privately in chambers or in the presence of the parents.
During the course of a custody hearing, each parent is entitled to present his or her own witness testimony. Witnesses often called by the parents may include:
Anyone else whom the parent feels might have beneficial testimony to present on his or her behalf.
In addition to witness testimony, another important aspect of presenting a custody case to the court will include documentation of anything that each parent believes is pertinent to demonstrate his or her her relationship with the child and why he or she should have the custody arrangement that is being requested.
What type of evidence might this include? In short, anything that brings your parent-child relationship to life for the court. It’s important to keep in mind that while your own testimony is important, it only goes so far. Ultimately, judges rely on evidence in making their decisions. Your own opinion will only go so far without evidence to back it up. This evidence could be as simple as a journal or calendar that includes a list of all of the dates and times you drive your child to and from activities or medical appointments or to school. It might include pictures of you and your child engaging in your day-to-day routines together – things like going to baseball practice or attending parent teacher conferences or scheduling play dates at home with friends. These may seem like minor activities but for the purpose of showing the court your involvement in your child’s life they are important.
On a more serious note, if you have negative evidence regarding your spouses interaction with the child – for example police reports documenting visits to the home for incidences of domestic violence, or verbally abusive text messages or emails, you will want to save those things to present to the court as well. Essentially, your goal is to paint for the court the most complete picture possible of your relationship with the child in order to support the parenting arrangement that you feel is in the child’s best interest.
As noted, typically, though it is not always necessarily the case, the older child is, the better the chance that their preferences will carry some weight in the case. It is important to keep in mind however, that even if a child is older, a court will often look not only at the child’s preferences but also the reasons for those preferences.
Imagine, for example, that a 17-year-old girl expresses a wish to live with her father, but later when questioned further about her preference states, “My dad’s a lot more relaxed than my mom. There aren’t as many rules in his house. I get to stay out as late as I want and I can go out with whatever friends I want to.” For understandable reasons, this preference is likely to carry far less weight than a child who states, “I want to live with my mom because she doesn’t yell at me like my dad does. I don’t feel afraid when I’m around her, and she always helps me with my homework and make sure I get to my activities on time.”
Any court that asks a child about his preferences will and should look at the reasons behind those preferences. If you feel that your child’s preferences may be a significant issue in your custody dispute, it is always important to speak to your attorney about that beforehand so that the two of you can make a plan to address that issue in the best way possible for your case.
Sometimes, despite the evidence presented by the parties and even the testimony of the children as to their preferences, it can be particularly difficult for a court to make a determination as to custody. In these cases, a court may decide to bring in an outside custody evaluator, or to appoint a guardian ad litem.
A guardian ad litem is a third-party, typically an attorney, who is appointed to represent the interests of a child whose parents are involved in a custody battle. Certainly, appointment of a guardian ad litem is not always necessary in every case. They are usually appointed in a particularly contentious custody dispute or when the child is believed to be at some risk of harm or of not having their rights properly protected. A guardian ad litem will typically investigate the issues involved in the custody case and present testimony regarding their findings. That testimony might concern things like the living conditions at the home with each parent, any troubling behaviors exhibited by the parents or children, any observations about the parents’ interactions with the children, and any other evidence that the guardian ad litem believes is pertinent to the case.
A custody evaluator, by contrast, is an outside third party appointed by the court and does not represent anyone in particular in the case. The job of a custody evaluator is to gather evidence and testimony – it may be from family members, friends, coaches, teachers, babysitters, or others who know the family and have observed their interactions. The custody evaluator will then present his or her findings to the court for purposes of helping the court to make a decision.
Ultimately, after hearing all of the evidence put forth by the parties, and taking into account the opinion of any third-party evaluators appointed by the court, the court will issue a custody order. This custody order will set forth the court’s findings and directives with respect to the custody arrangement that it believes is in the best interest of the children involved. It will specify which parent will be the primary custodian, what the custody sharing or visitation arrangement might be, and any other pertinent details with respect to the circumstances of the parties.
It is important to remember that once this order is issued, it is binding upon the parties, and they must follow its directives until such time as it is later modified, if ever. A court order is not something that is merely guidance - it is a legal directive that the parties must comply with. As a result, it is important to be certain that having a court determine the issue for you is truly the route that you want to take before you proceed with doing so.
If you need to speak with an experienced child custody attorney in Huntersville NC, contact Adkins Law to arrange a consultation. Adkins Law can analyze your custody situation in detail and help you make a path for moving forward.