By Christopher Adkins
In North Carolina, parents have the legal right to have custody of their children unless clear and cogent reasons exist for denying them this right. This right is not absolute but requires substantial and sufficient reasons for interference or denial.
Who may bring an action for child custody?
Any parent, relative, or other person, agency, organization, or institution may bring an action or proceeding for the custody of a minor child. Limitations exist on third parties that may bring a custody action as the parents have a constitutionally protected paramount right to the custody, care, and control of their children.
What is the standard of proof when a third party challenges custody?
When a third party challenges the natural parents for custody of a minor child, the standard of proof required to overcome the presumption of the parents to have custody of their children is "clear and convincing evidence." This means that a third party, whether this is a grandparent, aunt, uncle, or otherwise, must show by clear and convincing evidence that it is in the best interests of the child that the third party be awarded custody.
How can a third party show that it is in the best interests of the child for the third party to have custody?
A third party may show that the natural parents have been or are unfit to have custody. Unfitness, neglect, and abandonment constitute conduct inconsistent with the parents' protected status. Proof of this type of conduct may help prove custody with the natural parent(s) is not in the best interest of the child.
How do I modify an order awarding custody to a third party?
If a third party is awarded custody of a minor child, the natural parent(s) may seek a modification of the order if they are able to prove that a substantial change in circumstances has affected the welfare of the child. If the natural parent(s) can prove that there has been a substantial change of circumstances affecting the welfare of the child, and that a change in custody may be in the best interests of the child, they may be able to regain custody.
If you need to speak with a family law attorney in regards to third party child custody, please contact Adkins Law. Adkins Law has locations in Huntersville and Ballantyne, and primarily serves Mecklenburg County, Charlotte, and the Lake Norman area.
By Christopher Adkins
This is a sample separation agreement, which is only intended to be used as an example for illustrative purposes. The use of this document as your separation agreement would be a mistake. This document contains language and provisions tailored for the fictional parties and their specific situation. Your separation agreement would likely contain different language and provisions, which would meet your exact situation and needs. Please consult with an attorney in preparing a separation agreement.
STATE OF NORTH CAROLINA SEPARATION AND PROPERTY
MECKLENBURG COUNTY SETTLEMENT AGREEMENT
This Separation and Property Settlement Agreement between Jane Doe, of Mecklenburg County, North Carolina, hereinafter referred to as “Wife,” and John Doe, of Mecklenburg County, North Carolina, hereinafter referred to as “Husband,” (hereinafter referred to as the “Agreement”) shall become effective as of the date that it has been executed by each party hereto;
W I T N E S S E T H:
WHEREAS, Husband and Wife were lawfully married on _______________ and lived together as husband and wife until on or about _______________, at which time they separated with the intention of remaining separate and apart; and
WHEREAS, there were no children born of the marriage; and
WHEREAS, each of the parties is more than eighteen (18) years of age, and they desire to confirm their separation and to make arrangements in connection therewith, including the settlement and adjustment of their property rights and other rights, responsibilities, and obligations growing out of their marital relationship; and
WHEREAS, after consideration, each party having been advised of their right to seek independent legal, financial, or other professional counsel before entering into this Agreement, believes it is his or her own best interests to enter into this Agreement. Neither party is represented by an attorney, and both parties are proceeding pro se; and
WHEREAS, each party has read this Agreement, fully understands the terms, conditions, and provisions hereof and deems such to be fair, just, and equitable; and
WHEREAS, the parties desire to enter into this Agreement for the purpose of confirming in writing their mutual agreement to separate from each other, to release their rights to claim that their mutual separation itself constitutes an abandonment, constructive abandonment, or other ground for assigning fault, and, except as provided herein, to reserve all other rights and obligations that either party may have with respect to the marriage.
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained and for other good and valuable consideration, the receipt of which is hereby acknowledged, each party stipulates, agrees, and covenants with the other as follows:
1. Representation of Parties. Neither party is represented by legal counsel, and both parties are proceeding pro se. Both parties acknowledge that they have the right to have counsel represent their interests with reference to all matters concerning the execution of this Agreement. Both parties further acknowledge that they are executing this Agreement of their own free will.
2. Agreement to Live Separate. It shall be lawful for each of the said parties at all times hereafter to live, and continue to live, separate and apart from each other; to reside from time to time at such place or places, and with person or persons, as either such party shall choose or deem fit; and to conduct, carry on and engage in any employment, business, trade, or profession that such party may choose or deem fit, free from any control, authority, restraining, or interference, direct or indirect, by the other party, as fully and in all respects as if he or she were unmarried.
3. No Molestation or Interference. Neither party shall molest, harass, or interfere with the other party, nor compel, nor attempt to compel, the other party to cohabit or dwell with him or her by any means whatsoever.
4. Subsequent Divorce. This Agreement has not been entered into for the purpose of facilitating a divorce between the parties, but the parties do recognize the possibility that either of them may at some future time seek an absolute divorce from the other. Nothing herein contained shall be construed to prevent either party from instituting an action for absolute divorce against the other party in any jurisdiction. In the event that such action is instituted, the resulting decree of absolute divorce shall not impair or destroy the right of the Wife or the Husband to continue to receive the benefits and rights provided for under the terms of this Agreement but, on the contrary, all terms and provisions of this Agreement shall survive the same and be forever binding and conclusive on the parties hereto. Each party shall be responsible for paying his or her attorney’s fees concerning the aforementioned divorce should either party choose to file for divorce at the appropriate time.
CLICK HERE TO LEARN MORE ABOUT DIVORCE
5. Division of Household and Personal Effects. Husband and Wife have split all household and personal effects by mutual agreement and the party having possession of said item(s) shall retain said item(s) as his or her personal property. Each party hereby renounces any and all title, claim, right, or interest in such property in the others’ possession.
6. Vehicles. Each party shall take as their sole separate property their own vehicles. Each party shall be responsible for any and all payments, maintenance, repairs, insurance, and taxes for their respective vehicles. Contemporaneously with the execution of this Agreement, each party shall execute any and all instruments or documents necessary to effectuate transfer of title. Each party shall indemnify the other party and hold them harmless of any further obligations in regards to their respective vehicles.
7. Intangible Personal Property. The parties agree that they have divided all items of intangible personal property in a fair and equitable manner. Each of the parties hereby waives, releases, and relinquishes unto the other any and all right, title, claim and/or interest in the respective intangible personal property allotted to the other herein. Hereafter, neither party shall make any claim against the other inconsistent with this Agreement for any intangible personal property in the possession or under the control of the other.
8. Tangible Personal Property. Husband and Wife agree that they have divided all other items of personal property in a fair and equitable manner.
9. Real Property. During the course of the marriage, the parties acquired a residence and land, jointly titled to both parties, located at 123 Main Street, Huntersville, North Carolina, in Mecklenburg County (hereinafter known as “the Former Marital Residence” or “FMR”). Within thirty (30) days of the execution of this Agreement, the parties agree that they shall place the FMR on the market for sale. Wife shall live in the FMR until such time as it is sold. While Wife lives in the FMR, the parties agree that they shall split equally all payments, maintenance, repairs, insurance, and taxes for the FMR. Once the FMR is sold, the parties shall equally split the equity from the sale.
10. Retirement & Pension Accounts. The parties agree that they have divided any and all retirement and pension accounts in a fair and equitable manner. Both parties agree that they hereby relinquish any right, title, claim, and/or interest to any and all pension, profit sharing, 401(k), IRA, or other such retirement accounts the other party may maintain.
11. Martial Debt Distribution. The parties have acquired certain debt throughout the duration of the marriage, which shall be distributed as follows:
a. Husband shall have as his separate property any and all debts, credit cards, or loans not inconsistent with elsewhere in this Agreement made in his name only. Husband shall indemnify Wife and hold her harmless of the same.
b. Wife shall have as her separate property any and all debts, credit cards, or loans not inconsistent with elsewhere in this Agreement made in her name only. Wife shall indemnify Husband and hold him harmless of the same.
c. Husband and Wife confirm that they shall close any and all joint credit accounts within seven (7) days of the execution of this agreement.
d. Each of the parties hereby waives, releases, and relinquishes unto the other any and all liability and/or responsibility in the respective debt distribution allotted to the other herein. Hereafter, neither party shall make any claim against the other inconsistent with this Agreement for any liability and/or responsibility on any debt, credit card, or loan in his or her name. Further, each party agrees to execute any and all documents necessary to effectuate this section.
12. Equitable Distribution. Husband and Wife expressly acknowledge and agree pursuant to N.C.G.S. § 50-20 et. seq., that the division and distribution of marital property set forth herein is just, fair and reasonable, is deemed by the parties to be equitable, and that this Agreement shall be binding on the parties, their heirs and their assigns. Each party expressly waives any and all other rights, whether now in existence or acquired hereafter, to claim an Equitable Distribution under the laws of this or any other state and agrees that this provision and this Agreement may be pled in bar of any such claim for relief in any suit filed hereafter.
CLICK HERE TO LEARN MORE ABOUT EQUITABLE DISTRIBUTION
13. Disclosure of Marital Property. Each party hereto represents and warrants to the other that there has been a full and voluntary disclosure of all marital property subject to equitable distribution or division under the laws of the State of North Carolina, or where, applicable, any other jurisdiction. If either the Husband or Wife has failed to disclose to the other the existence of any marital property subject to equitable distribution under the laws of the State of North Carolina, or where applicable, any other jurisdiction, the party whose rights have been prejudiced thereby shall, at his or her election, be entitled to the following remedies in addition to those provided by law and equity:
a. To make application to the court for an Equitable Distribution as provided for under the laws of the State of North Carolina or any other appropriate jurisdiction, or to sue the other party for damages under this Agreement in an amount at least equal to his or her marital interest in the undisclosed property.
b. In addition, the party whose rights have been prejudiced by incomplete disclosure of marital property shall be entitled to recover reasonable attorney fees incurred in obtaining an equitable distribution of undisclosed property.
c. Should either party fail to disclose any marital asset having a value of other $500.00 or any marital debt exceeding the sum of $500.00, the aggrieved party shall have the option to sue the non-disclosing party in contract under this Agreement and if successful, shall be entitled to be awarded 75% of the value of undisclosed asset or if a marital debt is at issue, 75% of the amount of the debt shall be charged to the non-disclosing party. In addition, the prevailing party shall be entitled to an award of reasonable attorney fees and court costs.
14. Tax Returns. In the event that Husband and Wife are eligible to file a joint federal and/or state income tax return for any calendar year, and in the event that the parties’ mutually elect to do so, Husband and Wife shall file a joint federal and/or state income tax return(s) for such calendar year(s), and in the event that such joint return(s) is (are) filed, Husband and Wife shall equally spilt any refund or deficiency owed. In the event the parties do not mutually elect to do so, Husband shall be entitled to his federal and/or state income tax return(s) solely and Wife shall be entitled to his federal and/or state income tax return(s) solely.
In the event of any assessment of a deficiency on the parties’ income tax for any other year for which a joint return has been filed, the parties shall be jointly responsible for any money owed to the Internal Revenue Service or the North Carolina Department of Revenue, unless one party is determined to have been fraudulent. In that case, the fraudulent party shall be responsible for the deficiency. If a refund is granted to the parties because of a joint return for any tax year, the parties will divide said refund equally.
15. Tax Treatment of Exchanged Property. The parties acknowledge that the transfer of properties between them is to accomplish an equitable distribution of marital property and is incident to a divorce and is related to the cessation of the marriage as defined in Section 1041 of the Internal Revenue Code as amended by the Tax Reform Act of 1984. To the extent that an election is required by the parties under Section 1041 of the Internal Revenue Code as amended by the Tax Reform Act of 1984, the parties hereby make such election to have no gain or loss recognized on the properties transferred between them.
16. Alimony and Post-Separation Support. Neither party shall pay the other an obligation of alimony or post-separation support. Husband hereby waives any and all right he may have in making such a claim against Wife. Wife hereby waives any and all right she may have in making such a claim against Husband. Neither party shall petition the court in this or any other jurisdiction for making a determination of alimony or post-separation support in accordance with the N.C. General Statutes and, in the event that either party does make such a claim, the party against whom alimony or post-separation support is sought shall be entitled to recover attorney’s fees and costs against the other for defending the same.
CLICK HERE TO LEARN MORE ABOUT SPOUSAL SUPPORT
17. Reconciliation and Resumption of Marital Relations. In the event that the parties hereafter reconcile and resume their marital relations within the meaning of N.C.G.S. § 50-10.2, all of the provisions of this Agreement with respect to the division of the property of the parties shall nevertheless remain in full force and effect unless the parties modify the terms of this Agreement by a writing signed with the same formality as this writing signed after the date of their reconciliation and resumption of marital relations.
18. Husband’s Release of Property and Inheritance Rights. Husband does hereby waive, release, discharge, quitclaim and renounce unto the Wife and her heirs and assigns:
a. All and every right to a share in the estate of the Wife upon her death as provided in N.C.G.S. 29-14 or otherwise, now and hereafter by law provided;
b. All and every right to elect to take a life estate in real property upon the death of a Wife in lieu of the share provided in N.C.G.S. 29-14, as provided in N.C.G.S. 29-30, or otherwise, now and hereafter by law provided;
c. All and every right to dissent from the Will of the Wife upon her death as provided in N.C.G.S. 30-1 or otherwise, now and hereafter by law provided;
d. All and every right to a year’s allowance upon the death of the Wife as provided by N.C.G.S. 30-15 or otherwise, now and hereafter by law provided;
e. All and every right to administer upon the estate of the Wife upon her death as provided in N.C.G.S. 28-4.1 or otherwise, now and hereafter by law provided; and
f. All other rights or interests in property, both real and personal, which the Husband now has or may hereafter acquire arising out of or accruing to the Husband by reason of the death of the Wife, testate or intestate, and the Husband covenants and agrees well and truly to perform and abide by this Agreement.
g. This paragraph shall not be construed to prevent the effective transfer by the Wife to the Husband by inter vivos gift or by devise or bequest of any of her real or personal property, nor to prevent the Husband from serving as Executor of Wife’s estate, should she so appoint him by her Will after the execution of this Agreement.
19. Wife’s Release of Property and Inheritance Rights. Wife does hereby waive, release, discharge, quitclaim and renounce unto the Husband and his heirs and assigns:
a. All and every right to a share in the estate of the Husband upon his death as provided in N.C.G.S. 29-14 or otherwise, now and hereafter by law provided;
b. All and every right to elect to take a life estate in real property upon the death of a Husband in lieu of the share provided in N.C.G.S. 29-14, as provided in N.C.G.S. 29-30, or otherwise, now and hereafter by law provided;
c. All and every right to dissent from the Will of the Husband upon his death as provided in N.C.G.S. 30-1 or otherwise, now and hereafter by law provided;
d. All and every right to a year’s allowance upon the death of the Husband as provided by N.C.G.S. 30-15 or otherwise, now and hereafter by law provided;
e. All and every right to administer upon the estate of the Husband upon her death as provided in N.C.G.S. 28-4.1 or otherwise, now and hereafter by law provided; and
f. All other rights or interests in property, both real and personal, which the Wife now has or may hereafter acquire arising out of or accruing to the Wife by reason of the death of the Husband, testate or intestate, and the Wife covenants and agrees well and truly to perform and abide by this Agreement.
g. This paragraph shall not be construed to prevent the effective transfer by the Husband to the Wife by inter vivos gift or by devise or bequest of any of his real or personal property, nor to prevent the Wife from serving as Executor of Husband’s estate, should he so appoint her by his Will after the execution of this Agreement.
20. Mutual Rights to Convey Property Without Joinder of Other; Free Trader. Each of the parties hereto may henceforth purchase, acquire, own, hold, possess, and receive all rental and other income from property of every kind, nature and description, and each may sell, convey, transfer, dispose of, assign, and mortgage or otherwise encumber all property, whether real or personal, presently owned or hereafter acquired by such party, and execute deeds, bills of sale, deeds of trust and any and all other such documents without the consent or joinder of the other in as full a manner as if they were unmarried.
21. Modification of this Instrument. This instrument contains the entire agreement of the parties. Any modification of this instrument or waiver of any of its provisions shall be effective only if made in writing and executed with the same formality as this Agreement.
Any failure by either party to specifically perform or to enforce performance exactly according to the letter of this Agreement shall not constitute an alteration of the same by way of enlargement, waiver, reduction, estoppel, or otherwise, unless confirmed in writing by the parties. It is understood that the parties may, by mutual agreement, make temporary modification from time to time as conditions require, but this Agreement shall nonetheless be binding upon the parties as written, except in the event of a material breach.
22. Binding Effect. Except as otherwise provided herein, all the provisions of this Agreement shall be binding upon the heirs, next of kin, executors, and administrators of each party.
23. Entire Agreement. This Agreement contains the entire understanding of the parties and there are no representations, warranties, covenants or undertaking other than those expressly set forth herein.
24. Remedies for Breach. If either party fails in the due performance of his or her obligations hereunder, the other party shall have the right, at his or her election, to seek the equitable remedy of specific performance, to sue for damages for breach of this Agreement or to rescind the Agreement and seek such other legal or equitable remedies as may be available to him or her.
Both parties acknowledge that neither party has a speedy or adequate legal remedy to compel compliance with the provisions of this Agreement, that neither party should be required to repeatedly file suit for any breach of this Agreement, that this Agreement is fair and equitable to both parties and that an order of specific performance enforceable by contempt is an appropriate remedy for breach by either party.
25. Voluntary Execution. The provisions of this Agreement and their legal effect have been fully explained to or studied by each and each party acknowledges that this Agreement is fair and equitable, that it is being entered into voluntarily, that it is not the result of duress or undue influence and that each party believes that both parties are capable of performing each and every obligation imposed upon them by this Agreement.
26. Partial Invalidity. If any provision of this Agreement is held to be invalid or enforceable, all other provisions shall nevertheless continue in full force and effect.
27. Execution of Documents. The parties hereto agree to execute all documents reasonably necessary to effectuate the provisions of this Agreement.
28. Situs. This Agreement shall be construed under and governed by the laws of the State of North Carolina.
29. Attorney Fees. Each party shall be responsible for his or her respective attorney fees, if any, as it relates to this Agreement.
30. Suit Costs. In the event it becomes necessary to institute legal action to enforce compliance with the terms of this Agreement or by reason of the breach by either party of this agreement, then the parties agree that at the conclusion of such legal preceding, the losing party shall be solely responsible for all legal fees and costs incurred by the other party, such fees and costs to be taxed by the court. The amount so awarded shall be in the sole discretion of the presiding judge and the award shall be made without regard to the financial ability of either party to pay, but rather shall be based upon the fees and expenses determined by the court to be reasonable and incurred by the prevailing party. It is the intent of this paragraph to induce both Husband and Wife to comply with the terms of this Agreement to the end that no litigation as between these parties is necessary in the areas dealt with in this Agreement. In the event of litigation, it is the further intent to specifically provide that the losing party pays all reasonable fees and costs that either party may incur.
IN WITNESS WHEREOF, the parties hereto have affixed their hands and seals in duplicate counterparts, effective the day and year the first above written.
JANE DOE, Wife Date
JOHN DOE, Husband Date
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
I, , a Notary Public for Mecklenburg County, North Carolina, do hereby certify that JANE DOE personally appeared before me this date and is personally known to me through satisfactory evidence and has acknowledged the voluntary and due execution of the foregoing Separation and Property Settlement Agreement.
WITNESS my hand and official seal, this the day of , 2015.
Notary Public __________________________________________________
My commission expires:
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
I, , a Notary Public for Mecklenburg County, North Carolina, do hereby certify that JOHN DOE personally appeared before me this date and is personally known to me through satisfactory evidence and has acknowledged the voluntary and due execution of the foregoing Separation and Property Settlement Agreement.
WITNESS my hand and official seal, this the day of , 2015.
Notary Public __________________________________________________
My commission expires:
CLICK BELOW TO DOWNLOAD A PDF COPY OF THIS DOCUMENT
In North Carolina, to legally separate from your spouse, you must reside in different residences with the intent to live separate and apart from one another. The date of separation starts when one spouse moves out, and no paperwork is required to be filed to establish the legal separation.
It is beneficial, if both spouses are willing, to enter into a separation agreement outlining the terms of the split. A separation agreement, also known as a separation agreement and property settlement, is a contract between spouses that determines how marital property and debt will be divided, spousal support, and also may address child custody and child support. If spouses are able to agree upon these issues amicably, this is the most cordial and cost-effective way to establish the terms of a divorce.
Once you have been separated from your spouse for a year and a day, you may file for divorce, thus terminating the marital relationship. When you file for divorce, if you have executed a separation agreement, you may choose to incorporate the separation agreement into the divorce judgment, making the separation agreement a court order and enforceable by the power of contempt. You may, on the other hand, elect to not incorporate the separation agreement, keep it private, and have it remain enforceable by breach of contract.
If you are considering separating from your spouse, it is important to understand your rights and the divorce process. Contact Adkins Law to arrange a consultation with a family law attorney. Adkins Law has locations in Huntersville and Ballantyne, and primarily serves Mecklenburg County, Charlotte, and the Lake Norman area.
By Christopher Adkins
In North Carolina, child custody can be divided into two main elements: legal custody and physical custody. Legal and physical custody can be shared jointly, or can be granted solely to one parent.
Having legal custody of your child means that you are able to make decisions for important things in their lives. Things like where your child will be going to school, what doctor your child will see, and what religious upbringing they will receive – these are examples of legal custody decisions.
When you were married to your spouse, these were typically decisions that you made together. In most situations, the courts want to maintain this joint decision-making. Thus, often, co-parents share joint legal custody and have to mutually agree upon important decisions made involving the child’s upbringing.
Joint legal custody is not, however, always granted. In some circumstances, especially when one parent has been the primary caregiver and is granted sole physical custody, that parent may also be granted legal custody. In other situations, co-parents may be granted joint legal custody, but one parent may have the final decision-making authority on certain issues such as medical decisions, while the other parent may be granted final decision-making authority on certain issues such as education decisions. If a judge feels like the parents are not going to be able to mutually reach decisions on matters in the future, and ongoing conflict may arise between the parents, sole legal custody may be granted to one parent.
Physical custody, on the other hand, refers to where the child physically lives. Like legal custody, physical custody can be shared jointly, or one parent may be granted sole physical custody. Most commonly, when both parents are involved in the child’s life, they are awarded joint physical custody, which may not involve an exact 50/50 time split, but something very close.
If one parent is awarded the child most of the time, that parent is said to have primary physical custody, and the other parent is usually granted visitation or parenting time. A common example of this type of physical custody arrangement would be when one parent has parenting time with the child every other weekend. It is common for a parent with visitation rights to be granted several weeks of parenting time with the child during summer break to make up for any time they are not able to spend with the child during the school year.
If you have questions regarding child custody and need to speak to a family law attorney, please contact Adkins Law. Adkins Law has locations in Huntersville and Ballantyne, and primarily serves Mecklenburg County, south Charlotte, and the Lake Norman area.
By Christopher Adkins
If you have been out drinking and are stopped by the police while driving home, what should you do? I will give you the most lawyerly answer possible: IT DEPENDS. I say that because it really does depend on a number of things. How much have you had to drink? Have you eaten anything recently? How long of a period of time were you drinking? How much do you weigh? These are all factors that will weigh into determining your BAC and whether you may legally drive.
If, for example, you are a 200 pound man who had two 5% ABV beers with dinner over a one hour period before driving, your probably okay to drive. A rough estimate of BAC in that situation would put you somewhere around a .03 to a .04. If you had, however four 5% beers over that same time period, you might be somewhere around .08 to .09 and it probably would be best not to drive. A woman who weighs 120 pounds, who consumes four 5% beers over the period of an hour might be as high as a .17 to .18. These aren't exact numbers, of course, as alcohol may affect people differently. It does give you an idea, however, of what kind of factors may play into determining your BAC.
In that scenario, if you were the 200 pound man who had two beers over the course of an hour, it might be wise to submit to an Alcosensor test and standard field sobriety tests. It may show the police that you are indeed sober and that you are able to drive a vehicle. If you were the 200 pound man who consumed four beers over the course of an hour, I would not submit to any testing whatsoever. In that situation, all you would be doing is providing the police with evidence to use against you in court.
You also have to consider the field sobriety tests that you are taking. Some people and attorneys might tell you that they are designed to trip you up. This isn't true. They are designed to allow the officer to make his best determination as to your BAC and ability to operate a motor vehicle. Determining BAC and whether someone is sober enough to drive is NOT an exact science. The police officers are doing the best they can with the training they are provided. This being said, the fact that this testing is NOT an exact science works to your advantage.
Many people don't realize the certain factors that may considerably throw off a field sobriety test. The Horizontal Gaze Nystagmus test (HGN), for example, may be thrown off entirely if the subject has sustained a traumatic brain injury (TBI). A TBI may cause resting nystagmus and the artificial triggering of nystagmus at levels not found in average people. This may also be true if the subject is wearing contacts, has to take off his prescription glasses, or has had eye surgery. All these factors may produce false positives for HGN.
Both the Walk and Turn (WAT) and the One Leg Stand (OLS) may be thrown off if a subject has sustained previous injuries to their legs or lower body. A person who has a sprained ankle, for example, will not be able to walk or stand the same way as a person who has not. Also consider what type of footwear the subject is wearing and the surface in which the subject is taking the test. If a subject is trying to perform the WAT in high-heels on a slight incline, they probably aren't going to perform the test as well as a subject in sneakers on a flat surface.
All these factors must be considered before agreeing to take any type of field sobriety test. If you absolutely know that you've had too much to drink, I would not advise that any person submit to a field sobriety test. In these cases, the testing will only serve to be used as evidence against you in court.
One of the rarest, but most effective, tools a person may use when they are stopped by the police after they have been drinking is the pre-arrest test. As discussed in the pre-arrest test section, North Carolina allows a person to be transported, un-arrested, to provide a breath sample. As this is a rarely exercised right, many police officers are unsure of the procedures that they must follow when a person requests a pre-arrest test. If the police officer doesn't follow the procedures correctly, or unlawfully places you under arrest after you request a pre-arrest test, you may be able to win your case in court. Even once you are transported to a location to provide a breath sample, you may refuse to exercise the pre-arrest test. At this point, the officer will have to decide whether they want to arrest you and how to best proceed in collecting evidence against you. This will inevitably pose difficulties for the officer.
If you are arrested roadside and transported to provide a sample of your breath, always request that a witness come observe your test. You are provided this right and a witness may observe you give your breath sample if they are able to get to the testing site fast enough. In no case will the testing procedures be delayed more than 30 minutes when you request that a witness come observe your test. If, however, a witness arrives in time to see your test, and is denied the ability to come watch you blow, you may have established a defense as your rights may have been violated. Requesting a witness may also provide you with a little more time to try and sober up. If you are on the cusp of a .08, time is important.
If you suffer from gastroespphageal reflux disease (GERD), and this affected you ability to provide an adequate breath sample, you also may be able to establish a defense against your DWI charge. Burping before your breath test, or digestive conditions, such as GERD, may lead to the presence of residual mouth alcohol. Residual mouth alcohol occurs when alcohol you have digested is burped up into the mouth. Residual mouth alcohol will substantially alter the results of any breath test that you submit to. It is important to note if you suffer from digestive conditions or remember burping before providing a breath sample.
If you are arrested for DWI, you are processed through jail and released as fast as possible. This is because you have the statutory right to seek an independent chemical analysis upon your release. After being released, you may go to a hospital or other alcohol testing facility and pay to have your own independent alcohol test. You may use the results as evidence of your alleged BAC. If possible, do seek to go to a hospital to get an independent blood alcohol test immediately upon your release. Although this may only serve to confirm the results taken by the police, at least you have an independent test that may prove your BAC was lower than the state is alleging. Also be sure to note if you aren't released soon after your arrest and subsequent testing. This may set the grounds for a defense for a Knoll Motion. If you aren't released soon after your DWI arrest, you aren't able to seek your independent chemical analysis, and thus you were deprived of your statutory rights.
As with any legal issue, it is important to document exactly what happened to the best of your recollection as soon as you are able to. This will help strengthen your defense. Ultimately, it is your decision as to what is best for you if you have been stopped by the police and having been drinking. If you do drink before you drive, even the occasional one or two drinks at a social event, you need to be educated as to your rights so you are able to make an informed decision. I can't advise you directly whether you should take a specific test or not. I will say, based on over a thousand DWI investigations and hundreds of DWI arrests, it is usually best to avoid admitting to anything, avoid taking any tests, and avoid saying much at all. The best strategy is to be polite, respectful, and assertive as to your rights.
Contact Adkins Law if you need to speak to a DWI attorney / DUI attorney. A DWI lawyer from Adkins Law will be happy to give you a free DWI consultation. Adkins Law offers DWI representation in Huntersville, Cornelius, Davidson, Charlotte, Mecklenburg County, Iredell County, Gaston County, Cabarrus County, and the Lake Norman area.
A common issue co-parents have in rearing their children involves modifying or changing their child custody arrangement once a permanent order has been entered. Just because an order is deemed permanent, does not necessarily mean that it cannot be changed. Specifically, permanent child custody orders may be modified in two situations:
When a parent violates a court order, they may be found in contempt. A finding of contempt alone may not justify the modification of a child custody order. If the violation, however, is deemed to be serious enough to warrant a changed circumstance as for the custody arrangement, the custody or visitation order may be modified. The intent is not to punish the parent who violates the order, but instead to modify the order in the best interests of the child.
When one or both parents allege that there has been a change in circumstances that affects the child, a modification to the existing child custody order may be made. A substantial change of circumstances may involve something that changes the child’s wellbeing, relationship with their parents, the child’s personal wishes and desires, the conduct of the parents, and the child’s environment and living situation. The change must be substantial, and it must affect the child. This affect does not have to be adverse, but can be positive as well.
If you need to speak to a child custody attorney in regards to modifying an existing child custody order, contact Adkins Law. Adkins Law focuses primarily on family law matters, and has locations in Huntersville and south Charlotte.
Adkins Law PLLC primarily focuses on family law issues such as divorce, child custody, child support, equitable distribution, and spousal support. Take a look at these great aerial views from our Ballantyne office located in south Charlotte. Contact Adkins Law if you need to schedule a consultation.
In North Carolina, if your spouse cheats on you, you may bring a lawsuit against the paramour for alienation of affection or criminal conversation. This means you may sue the person that slept with your spouse or alienated your relationship. Take a look at this video for more information on heart balm torts in North Carolina.