Certainly, making the decision to move away after a divorce and after an initial custody arrangement is determined can be a hard decision for anyone to have to make. Whether the move is for a new job, because of a remarriage, or simply to start a fresh chapter in a new setting, much consideration often goes into making that choice. That choice certainly becomes more complicated when children are involved, and it must be decided whether the children will relocate as well, or whether current custody arrangements will change in some way.
If you or your ex-spouse is considering a relocation, it is always wise to check your separation agreement or child custody order for any restrictions on relocation that may exist. Some custody orders place restrictions on parents moving out of state or moving the children more than a specified number of miles away. If you have such restrictions in your custody order and you violate them, you could be found to be in contempt of court and subject to a variety of penalties, which may, depending on the severity of the situation even involve the loss of some of your custodial rights. For most parents, this simply isn’t worth the risk.
Even if your separation agreement or custody order does not specifically place limits on traveling or relocating, those considering doing so should still be cautious, as moving without the consent of the other party or the permission of the court might later be used against you, or result in the other parent seeking an emergency custody order for the return of your child to North Carolina.
This is not to say that relocation will never be allowed. In fact, in many circumstances, courts do allow a parent, particularly if that parent is the child’s primary physical custodian, to relocate with the child. As is always the case in contested custody issues, the court will seek to make a decision regarding the proposed relocation that is ultimately in the best interest of the child. If a parent objects to the other parent relocating with the child, that parent will have the burden of presenting evidence that the move is not in the child’s best interest.
Ultimately, a relocation may end up being the best decision for your family, and certainly as a parent, you are in the best position to know whether or not that is so. Regardless, however, it is important to think through that decision carefully, and to make sure you are making it in accordance with the terms of any agreements or orders already in place in your case. Doing so is ultimately in the best interest of all involved.
If you need to speak to an experienced family law attorney regarding your child custody arrangement, please contact Adkins Law to arrange a consultation.
Under the United States Constitution, and under North Carolina law, parents have the “paramount right to custody, care, and nurture” of their minor children.” This is otherwise known as the “superior rights doctrine,” and essentially, it means that parents are considered to have rights that are superior to those of non-parents when it comes to determining and acting in the best interests of their children. Thus, for the most part, in North Carolina and across the country, courts will seek to allow parents to maintain custody of their children whenever it is possible.
In certain instances, however, parents may be unwilling or unable to provide a safe and nurturing environment for their children. In those situations, the court may consider other options, and grandparents may seek to petition the court for custody of their grandchildren. Certainly, if you are a parent or a grandparent who finds yourself in this situation, consulting an attorney should be your first step.
Generally, however, it can be helpful to know that as a grandparent seeking custody of your grandchildren under the North Carolina General Statutes, 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). While there are different ways to meet this burden of proof, in some cases grandparents may show that an unfit parent may:
· Have abandoned their child;
· Have continually neglected their child;
· Have abused their child;
· Have shown an ongoing pattern of substance abuse;
· Have decided to voluntarily give up custody of their child;
· Be unable to provide a safe and nurturing home for their child;
· Have a proven history of domestic violence;
· Be unable in other ways to provide the safe and nurturing home that the child needs to grow and thrive.
If, considering the law and the proof that is required to obtain custody you believe you can do so, you can proceed to seek custody under N.C. Gen. Stat §50-13.1(a). Under this provision, you can file your claim for custody at any time, provided you can establish standing to do so. Standing simply means that the person who is seeking the custody has a right or interest that is recognized and protected under the law. Certainly, the ultimate determination as to whether or not a grandparent is granted custody will be left to the discretion of the court, as is the case with all custody matters.
In other situations, grandparents may only be interested in seeking visitation with their grandchildren, as opposed to full custody. In that situation, parents continue to have the paramount authority with respect to the care and well-being of their children. Accordingly, unless certain elements of proof are met, it is unlikely that a court will order a parent to allow visitation with their grandchildren. While grandparents do have a right to file a motion to intervene in an ongoing custody action between the parents to seek visitation, this does not mean that the request will be granted. Generally, and absent extraordinary and extenuating circumstances, courts feel that the parents are best suited to make this determination on their own.
 North Carolina law does recognize two situations in which a non-parent has standing to seek custody of a child, including when: (1)The non-parent has a parent-like relationship with the child (when the person has assumed parental duties and has an emotional attachment to the child similar to that of a parent; or (2)The non-parent has a biological or adoptive relationship with the child, and there are allegations of abuse, neglect, or unfitness against the child’s parent(s).
If you need to speak with an experienced divorce attorney regarding grandparent visitation and custody, please contact Adkins Law to arrange a consultation.
Often times, when parents separate, they are able to agree to a parenting arrangement that is in their child’s best interests and works well for the parents. In many cases, flexible schedules between the parents work well without conflict until the child is an adult. This is, however, not always the case.
In situations where parents cannot agree to the custody schedule, they need a child custody order. A child custody order sets out the plan for making decisions for the minor child and for determining when and where the child spends time with each parent. For parents who conflict with each other, this is an absolute necessity.
To obtain a child custody order, a parent must file an action with the court for child custody. After filing the action, the other party must be served with the lawsuit and afforded the opportunity to respond. In custody actions, after filing, the parents are almost always required to attend a court ordered mediation in the hopes of resolving their differences and working out a custody schedule. Attorneys may be but are often not included in these mediations. If resolution is reached in mediation, an order dictating the custody arrangement and schedule will be issued by a judge, which resolves the matter.
In the event that the parties are unable to come to an agreement during mediation, and are unable to negotiate their custody schedule, they require a judge to determine their parenting schedule and end up in litigation. In litigation, the parties become adversaries and lose their ability to control and determine their parenting arrangement through negotiation. The conflict is resolved by the judge upon the presentation of evidence to determine what parenting arrangement is in the best interests of the minor child.
The primary issues to be determined by the judge are legal custody and physical custody. Legal custody concerns decision-making for the minor child. Where the child goes to school, the doctor, therapy, dentist, for example, include matters of legal custody. Physical custody, on the other hand, concerns where the child spends the night and how much time each parent is going to spend with the minor child.
Once a child custody order is issued, it is enforceable by the court through the power of contempt. What does this mean? Basically, in a nutshell, if a party violates the custody order, the court has the power to punish the violating party. The court may have a number of options in punishing the offending party including fines, probation, jail time, and attorney’s fees.
If you need to speak with a family law attorney concerning child custody issues, please contact Adkins Law to arrange a consultation.
Happy Valentine's Day from Adkins Law! Call us today to schedule your consult!
Are you in need of an attorney to help you with your divorce, child support, alimony, child custody, etc.? Adkins Law is here to help! Call us at 704-274-5677 to schedule your consultation with an attorney here at Adkins Law.
In North Carolina, when you separate from your child’s other parent, there are a lot of things to consider and plan for. In most cases, it is best to have a consent order entered as to your child custody arrangement, and any child support obligations. A custody order is required to enforce any agreements as to child custody.
In North Carolina, there are two kinds of child custody: legal child custody, and physical child custody. Legal child custody concerns decision making, and what parent is making such decisions as to where the minor child is attending school, what doctor and dental treatments the minor child will have, what religious practices the child will adhere to, and what extracurricular activities and events the child will participate in. Physical custody, on the other hand, concerns what parenting time each parent will spend with the minor children.
Most cases involving child custody are resolved by direct negotiations with the opposing party, and the remainder are resolved through the process of mediation. Most jurisdictions require the parties to attend a mandatory mediation before they may present their child custody case in front of a judge. Mediation is often successful as it gives the parties the ability to maintain a sense of control in resolving and settling their matter. In the event your spouse or partner is unreasonable, and unwilling to settle, your case may be forced into litigation, where the judge determines a child custody arrangement dependent upon the best interests of the minor child.
If you need to speak with a child custody attorney regarding a child custody matter, please contact Adkins Law. We are located in Huntersville NC and are happy to be of service.
In North Carolina, the goal of child support is ensure that the child is receiving the same proportion of their parents’ income as they would if they lived together. This is determined by a formula through the North Carolina Support Guidelines, which are designed to meet the needs of the child while being fair to both parents. The child support order will dictate the amount of money the non- custodial parent must pay.
How is the support computed?
Calculating child support requires determining the parents’ total gross income and calculating the percentage that each parent contributes to the total. The court may also consider overtime pay, bonuses, self- employment and other biological or adopted children. Step- children are not considered in the calculation.
It is important to remember child support has priority over all other financial obligations, and in addition to setting child support, the order may require one or both parents to provide health insurance coverage for the children.
How does the process work?
The non- custodial parent will be served with a Civil Summons and Complaint. They can respond to the document by filing an answer, providing financial information to the child support office prior to the hearing date and signing a voluntary support order, appearing at a hearing, or getting an attorney who will assist in responding to the Complaint.
If the non- custodial parent does not respond to the Compliant, the court may enter a default offer. This means the court takes everything the custodial parent says to be true, and enters an order based on that information.
Coming to an agreement between the parties is always preferred, and if both parents are able to find a solution that they can agree on then a court hearing is not required.
Contact Adkins Law today to set up a consultation and discuss the best way to move forward in your Child Support case.
Undeniably, many families in the US experience serious domestic problems that often necessitate legal interventions. Just like other states of the US, North Carolina (NC) too has its unique laws, under the North Carolina General Statutes (NCGS), that govern all the family matters and that are applicable across its respective regions including Mecklenburg County and all the regions within such counties such as Cornelius, Davidson, and Huntersville in Mecklenburg County. As such, it is crucial for all persons residing within NC, particularly in Mecklenburg County to know the fundamentals of family law in NC likely to affect them such as separation and divorce, alimony, child support, and child custody.
Noteworthy, separation and divorce (NCGS § 50) are two different concepts under North Carolina’s family law statutes. A legal separation does not end one’s marriage. Instead, a legal separation lets the parties remain married but live separately. Marital misconduct may come into play here if a party wants to file an action for a forced legal separation. However, for an action for a forced legal separation (divorce from bed and board) to succeed, the complainant must provide evidence establishing that the spouse was at fault including cruelty, adultery, and indignities, etc.
Significantly, although one can legally separate at whatever time, the parties must have been physically separated for a minimum period of one (1) year to succeed in a no-fault divorce. As such, one must meet the legal definition of “separation” to file a divorce case. Merely living in different rooms of the same house or living in separate houses but maintaining the appearance of a relationship does not qualify as a legal separation under the state’s law. If the couple reconciles, the separation period terminates. Additionally, another option other than separation exists, though rarely pursued. Here, the law allows a partner to file for divorce after being lawfully separated for three (3) years and believes that the other partner suffers from untreatable lunacy.
Alimony, child support, and child custody are also NC family law issues. According to NCGS § 50-16.3A, alimony is the act of paying for the upkeep and maintenance of a partner, either through a lump-sum or on an ongoing basis provided by the supporting spouse to the dependent spouse. In Mecklenburg County, forinstance, the general rule is that a dependent spouse is the one earning less income, though the NCGS contains sixteen factors (NCGS § 50-16.3A) that guide the court in making such a determination. When it comes to child custody in NC, the most common reference usually made is “the best interest of the child.” Here, the judge (not a jury) hears the evidence presented before the court and decides how the parents, either jointly or individually, will share time with the children and make decisions impacting the lives of the children.
Often, the court appoints joint physical custody of the children to the parents. Sometimes the court will award one parent as having main physical custody while the other having ancillary physical custody accompanied with a visitation schedule. One parent is usually ordered to pay the other parent child support. Such support is usually assessed using the North Carolina Child Support Guidelines, especially if the combined yearly income of the two prior to taxation amounts to $300,00.00 or less (though also dependent on the custodial schedule), and such a support lasts until the child turns 18 years and graduates high school, or the child is lawfully emancipated. If you need to speak with an experienced family law attorney, contact Adkins Law.
By: Jacqueline Keenan
How was custody established?
The first step in changing child custody is knowing how it was established. If you and your ex are working off of a separation agreement or something that you decided outside of court, then one person needs to request the change. This should be done in writing, but because it is not a court order, it is up to the other party to decide whether or not they are willing to make a change. If that fails, then it may be time to bring the issue to court and have it put in a court order.
If custody is determined through a court order, then the decision to make a change to a custody arrangement rests with the judge. The judge will decide if there is a substantial and material change in circumstances, and if so they may modify the order.
Substantial and Material Change
In determining child custody, the goal of the court is always to look out for the best interest of the child, regardless of what the parents may want. So, when a judge is asked to change an order that has already established what serves the best interest of the child, they will need a very good reason. Because of this, the judge will look at what has changed since the original order was written. If they find a change that is both substantial and material, then they may be persuaded to make a change.
Substantial and material change can include one parent losing a job or moving out of state. A new marriage or relationship that is having an effect on a child’s life may also be considered.
Modifying child custody can be a complicated process. If you are interested in making a change to your custody agreement or order, contact Adkins Law to set up a consultation and decide your next steps.
I’m the Father?!
For a couple who has been trying to get pregnant, the sentence “you’re the father” will often be received as exciting news. But for all of the frat boys, famous rappers, and casual daters of the world, this may be your worst nightmare. So, what do you do if a paternity action is brought against you?
What is a paternity action?
A paternity action is a legal suit that is used to establish the paternity of a child that can be brought by the mother or a state agency if the mother is receiving state financial assistance. In this proceeding, the judge will hear evidence as to why the mother believes that you are the father of her child and will often order genetic testing. This testing will be done by a laboratory chosen by the court. If the genetic match is 97% or higher, you are the father!
What does it mean to be the legal father?
Establishing legal paternity comes with several obligations and benefits, including paying child support, and having the right to visit with your child.
What should my next steps be?
If a paternity action is brought against you, you will have the opportunity to file an answer with the court stating why you believe you are not the father. You should contact Adkins Law ASAP to set up a consult to help you through this process.