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.
North Carolina General Statute § 50-13.7 states that “[A]n order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.”
NCGS 50-13.7 states that an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. In fact, the Court of Appeals has consistently held that “the trial court commit[s] reversible error by modifying child custody absent any finding of substantial change of circumstances affecting the welfare of the child.” Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013) (quoting Hibshman v. Hibshman, 212 N.C.App. 113, 121, 710 S.E.2d 438, 443 (2011)).
Importantly, a finding of contempt will not lead to a modification of custody or visitation. As stated by our Court of Appeals in in Woncik v. Woncik, child custody “cannot be used as a tool to punish an uncooperative parent.” Only when the Court concludes that the interference with visitation was itself a “changed circumstance” is there merit to modify custody and/or visitation. Our Court of Appeals has stated that “A decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. To hold otherwise would invite constant litigation by a dissatisfied party so as to keep the involved child constantly torn between parents and in a resulting state of turmoil and insecurity. This in itself would destroy the paramount aim of the court, that is, that the welfare of the child be promoted and subserved.” (Davis v. Davis, 748 SE2d 594 (N.C. App 2013) citing Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968)).
In Davis v. Davis, the trial court made findings that the parties had a dispute about the custodial schedule and Defendant lost his temper and inappropriately physically disciplined the minor child. The Court still found that there was not a substantial change of circumstances sufficient for the Court to grant Defendant’s motion to modify custody. (“The trial court did not find that defendant's “inappropriate [ ] discipline[ ]” of his daughter rose to the level of a substantial change in circumstances affecting the welfare of the children. The trial court also did not find that the scheduling disputes constitute a substantial change of circumstances. Therefore, the findings of fact and conclusions of law are insufficient to support its requirement that defendant obtain anger management counseling and its modifications of visitation. Accordingly, we vacate those portions of the trial court's order modifying visitation and ordering defendant to attend anger management classes and we reinstate the visitation schedule set out in the 2003 custody order.”) Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013).
Thus, it is not necessarily easy to modify an existing order for child custody. To do so, you have to prove that a substantial change of circumstances have occurred that impact the minor child, and that it is now in the child’s best interests to have the custody schedule changed. A court cannot modify a child custody order just because you are dealing with a difficult person. That person may be difficult with you, and at the same time be a great parent for the child.
If you have questions about modifying a child custody order and need to speak with an experienced child custody attorney, please click here to contact Adkins Law.
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.
A common question that comes up when dealing with child custody issues for service members involves deployments. Can my ex use my past and / or potential future military deployments against me in our custody matter? In North Carolina, in a proceeding for child custody of a service member, a court may NOT consider a parent’s past deployment(s) or possible future deployments as the ONLY basis in determining the best interest of the child. The court MAY consider any significant impact on the best interest of the child regarding the parent’s past or possible future deployments.
Thus, in determining what is in the best interest of the minor child for custody arrangements, military deployments of a parent may be considered as a factor, but may not be the only factor to consider in determining a custody arrangement.
Contact Adkins Law if you wish to discuss your child custody issues with a family law attorney.
Adults who plan their vacations in accordance to their work schedule experience difficulty when attempting to coordinate with their family’s busy activities. This is especially true with adults who share custody of their children with another parent. Parents who take their child across state lines in violation of a custody order can expose themselves to contempt of court charges and, potentially, charges of parental kidnapping.
In some cases, adults share custody of their children under a court order that addresses the issue of out-of-state travel. In the event that the order allows or in does not prohibit traveling across state lines, a parent is permitted to travel with their children from state to state. However, it is imperative that traveling parents look for restrictions on their custody order. A common restriction in such an order is that the traveling parent must receive consent from the other parent to take the kids out of state. Even if the order does not require it, it is best to get the other parent’s consent in writing. Written consent could be helpful in case a dispute arises in the future.
While traveling out of state, keeping the other parent informed of the itinerary can help ease tension. In most cases this is not a requirement. However, if the parent fails to abide by the terms of the court order or written permission of the other parent, the traveling parent could face civil or criminal penalties. A federal or state warrant may also be issued and the parent may face charges under the International Parental Kidnapping Crime Act.
Custody Order Not in Place
In some instances, parents want to travel out of state with their child, but custody is still pending or no order is in place. In this case, it is wise to seek the consent of the other parent or receive court approval. Establishing a record of unilateral actions without consulting the other parent can make a judge believe that that parent will not be able to effectively co-parent, and could potentially lead to modification of an existing custody order.
1) Legal Custody: The parent(s) or person(s) who the Judge has appointed to make all the major decisions in the child’s life, such as, decisions about health/healthcare, education, and religion. In North Carolina the child does not have to live with the parent or person who has legal custody of them.
The Judge could appoint two people jointly to have legal custody, known as “Joint Legal Custody,” or one person may be given legal custody, known as “Primary Legal Custody.”
2) Physical Custody: The parent(s) or person(s) who the minor child lives with on a day-to-day basis, who has actual, physical care of the child.
The Judge may appoint two people jointly to have physical custody of the child, this is called “Joint Physical Custody.” The persons or parents who have join physical custody must share time with the child so that each person has regular contact with the child. However, this does not mean that the child must live with one parent/person half of the time and with the other parent/person the other half of the time. Keep in mind it is up to the Judge how much time the child will spend with each parent/person.
The Judge may also appoint one person or parent to have sole physical custody, known as “Primary Physical Custody.” In this situation, one parent or person has the child in their care the majority of the time and the other parent or person may still have regular contact and overnight visits with the child.
3) Exclusive/Sole Custody: This means that only one parent has the form of custody.
4) Joint Custody: This means that two people or both parents share a form of custody.
***A common arrangement for custody is for both parents have joint legal custody and one parent to have primary physical custody, while the other parent has visitation rights.
If you would like to speak with a child custody attorney, contact Adkins Law. We have offices in Huntersville and Charlotte for your convenience.
When a family experiences a separation or divorce, a grandparent sometimes loses contact with their grandchildren through no fault of their own. We are often asked what rights the grandparent has, if any.
In North Carolina, a grandparent has the right to claim visitation with their grandchildren under certain circumstances, even over the objection of one or both parents. There are several statutes that permit a grandparent to maintain an action for visitation of their grandchild:
Understand that biological parents have a 14th Amendment right to care for a nurture their children. This is called the “Peterson presumption” in North Carolina, which provides that custody with a parent is presumed to be in the child’s best interest. The grandparent must overcome this presumption to obtain custody. Therefore, for a grandparent to prevail against a parent in an action for child custody, they must show that the parent(s) is either unfit, has neglected the child(ren), or has engaged in conduct inconsistent with their protected status (i.e., voluntarily giving up custody of a child to a non-parent). Grandparents, and non-parents bringing an action for custody, must prove their case with clear and convincing evidence.
If you have questions regarding grandparent custody and visitation rights in North Carolina, contact Adkins Law. We have offices in Huntersville and Charlotte for your convenience.