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.
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One of the only predictable things about life is that we can count on it to change. This is true for everyone, and it is especially true for families with children. As children grow, their needs change. A schedule and a visitation plan that may have worked well when children were toddlers may not work so well when they are preteens. This is not to mention the fact that the lives of parents change too. One parent might begin a new relationship, or take a job that requires a relocation. Whatever the situation may be, it is sometimes necessary for families to seek a modification of the court’s original custody order. As with every other divorce issue, it is of course always best if the parties can discuss the issue themselves and decide upon a modification that may be best. If the parties are able to do so, they can file a motion to modify the custody order with the court, and along with that motion, they submit their proposed modification to the judge for approval. This is often referred to as a consent order, and is typically the best approach to reduce time, expense, and stress for everyone involved. If, on the other hand, the parents are not able to agree on what sort of modification might be necessary, the parent desiring the modification will need to file a motion to modify custody with the court and prove either a violation of the original order as we discussed in the preceding section on enforcement, or prove what is known under the law as a “substantial and material change in circumstances.” If the court has determined that a substantial material change in circumstances has occurred, it will then consider whether modification of the existing custody order is in the best interest of the children involved. Understandably, courts have some amount of discretion in determining what is considered a “substantial and material” change in circumstances. Often, if one parent is relocating to another state and the move might impact the child’s stability and emotional well-being, the court might consider that circumstance substantial enough to warrant a modification. Likewise, a significant lifestyle change for one of the parents might also necessitate a change. If for example, one parent suddenly begins struggling with addiction or mental health issues that are having a detrimental effect upon the child, this may qualify for modification. In other instances, if one parent has entered into a new relationship with a person who has proven to be a negative influence on the child or otherwise displays behaviors that are detrimental to the child’s well-being, this may qualify for modification of custody as well. If one parent starts suddenly leaving the child alone for long periods of time or failing to nurture and care for the child as he or she should, this may also warrant modification. Generally, courts have a good deal of discretion and consulting with an attorney as to your particular circumstances is always a wise decision when determining whether or not a request for modification might be successful. If you need to speak with an experienced custody attorney in Huntersville about modifying your existing custody order, contact Adkins Law to arrange a consultation. For those parents who are successfully able to negotiate the terms of a parenting plan and agreement but want the agreement to be enforceable in the way that an official court custody determination would be, a consent order is also an excellent option to consider. A consent order is an order which is entered by the court, essentially formalizing an out-of-court agreement negotiated by the parties. Typically, the process for obtaining a consent order might involve one spouse filing a “friendly” lawsuit for child custody against the other, essentially for the purpose of having both parties agreeing to come together and place the case before a judge for the sole purpose of submitting the agreement for the court’s review. The parties then set forth the terms of their arrangement in a document that both parents sign, which will then be submitted to the court for review, approval, and signature. After the order has been signed, it officially becomes a “consent order”, and is for all intents and purposes the same in the eyes of the law as a court order entered after trial, without actually having to have the trial itself. This means that instead of having to file a contract action to enforce the agreement, one party would be able to return to court for direct enforcement of the consent order itself. Each of these questions are important questions to ask, and ones about which the information we have provided is hopefully helpful. It must be said, however, that no information provided in any guide is a substitute for the advice of an attorney which is uniquely tailored to your personal circumstances. Before you enter into any legal agreement, you should always seek legal counsel. For peace of mind, and for ensuring that you have adequately covered all of your legal bases, doing so is well worth it. Mindset and Method Working Together Ultimately, regardless of the method of negotiation and resolution that you choose, the most important element to successfully crafting an agreement that works for your family is making the decision to go into the process with an open heart and an open mind. Be willing to communicate openly and to cooperate readily. It is the one single choice you can make that will have the most impact on whether your attempts to reach an agreement succeed or fail. Even more importantly, it is critical to reducing the overall stress level that your entire family feels, which is best for everyone. This may not always be easy, but it will always be worth it. Without question, divorce is an emotionally turbulent process. Most likely, there have been some harsh words and hurt feelings. That’s normal. The chances are good that difficulty working together is part of what may have caused you to decide to get a divorce in the first place. The effort to put that aside and focus on what’s best for your children can be difficult at times, but you should keep trying. From a practical perspective, what does this mean? It means:
In the end, the truth is that in many cases mindset and attitude will play a significant role in ultimately determining whether you are able to successfully negotiate and enter into a custody agreement on your own without the need for court interference. In some cases, however, as we have stated, this simply isn’t possible. The gap between what you and your soon-to-be-ex spouse want may simply be too wide to bridge effectively for any number of reasons– and that’s okay. In those instances, taking the matter to court and allowing a judge to decide those issues is typically the best path forward. Don’t be afraid to take it if you need to. If you need to speak with an experienced child custody lawyer in Huntersville NC, contact Adkins Law to arrange a consultation. What Happens if our Life Circumstances Change, and we want to Change our Custody Agreement?1/1/2021 This is a good question, and one with an answer that really highlights the advantage of entering into a custody agreement together, rather than having a court enter a custody order. Let’s face it. Children ad are continually growing, and their needs are One of the many good things about entering into your own agreement is that as your life circumstances change, you can decide, together, to modify your agreement to better fit your family’s needs. Ultimately, when parents want to modify a custody agreement, they have three basic choices:
Essentially, your agreement is a contract between the two of you, and as such, the two of you can modify it by writing an amendment to the original agreement. It would be required that both parties sign the new agreement in front of a notary, but after doing so, it would be legally binding without any additional involvement from the court. This is obviously the best choice for modification if the parties are able to make this option work. If it’s too difficult to do so through either agreement or mediation, the parties can always choose to file a new custody action in court. This essentially restarts the entire custody determination process from the beginning, which as noted, can be expensive and stressful. Sometimes, however, it’s the only option if no agreement about modification can be reached otherwise. If you need to speak with an experienced child custody attorney in Huntersville, NC, contact Adkins Law to arrange a consultation. Beyond deciding on what negotiation and dispute resolution process will likely work out best for your family, it can also be helpful to really spend some time thinking through the nuts and bolts of the agreement itself. You may be wondering any number of things about how to craft, enforce, or change a custody agreement if necessary, and we wanted to address a few of the most common. What kinds of things should we address in the agreement, and how much detail should we include? Each family is different and unique from any other. As a result, no custody agreement is going to be exactly like any other. This is, after all, the point of crafting your own custody in agreement in the first place – tailoring it to your unique circumstances. Having said that, there are a few basic building blocks that every custody agreement should include:
These are only a few commonly asked questions of many. Certainly, if you have questions about the content of your particular custody agreement, talking to an attorney is always a wise decision. If you would like to speak with an experienced child custody attorney in Huntersville, NC, contact Adkins Law to arrange a custody consultation. If you have recently had friends or family members who have gone through a divorce, it is possible that you may have heard the term “collaborative divorce." If so, this is because it has become a very popular method of resolving divorce issues in recent years. Collaborative divorce is the most recent significant development in divorce resolution, and it is intended to be a way for a couple who is divorcing to work together as a team with trained professionals to resolve their issues together in a positive and cooperative negotiation, without having to go to court. In a collaborative divorce setting, each spouse has his or her own attorney to provide advice and support, and all parties commit to working together toward agreement on the issues without going to court. In fact, one of the key conditions of a collaborative law negotiation is that if for any reason the collaborative law process fails, the parties will have to obtain new attorneys. The intent is truly that everyone be committed toward resolving the issues in the best and least stressful way possible. Those attorneys who practice collaborative law receive extensive training in the process. This training includes not only conflict resolution strategies but also practical and legal training in a variety of areas. In addition to the attorneys, other specialists may also be involved in the discussion and negotiation process including financial advisors, child therapists, tax specialists, marriage therapists, and any other professionals at the parties feel would be helpful to thoroughly assessing and resolving their issues. The essential idea behind collaborative divorce is that parties make the choice to be honest open and committed to resolving their issues with the benefit of legal counsel but without the contentiousness involved in a courtroom setting. Together, the parties enter into a voluntary set of ground rules that everyone agrees to abide by. The exchange of information and ideas is open and honest, and the goal is to work together toward crafting an agreement that is in the best interests of the children and the family as a whole. Ultimately, if the collaborative law process is successful, the parties will have an agreement that effectively addresses all of the issues before them, and which they can agree to modify in the future if necessary, as their lives and circumstances change. Often, if used successfully, collaborative law can be a very effective method of handling the divorce process. If you need to speak with an experienced divorce attorney in Huntersville, please contact Adkins Law to arrange a family law consultation. We cannot think about anything more important than family, especially our children. When parents break up there are a lot of issues to determine as far as child custody and visitation is concerned. It is hard enough for parents to agree how to raise their children under one home; when a child has to spend time in two homes, decisions can be even harder to make. In North Carolina, our court system has determined that it is in a child's best interests to spend time with both parents. Determining how much time to spend with each parent and what child custody schedule to have may be difficult for some parents. If parents can agree to their parenting time and a custody schedule, they are often able to put this in a child custody order, which spells out what days and overnights a child is to spend with both parents. If parents cannot agree to a custody schedule, they sometimes need the involvement of the court system. This requires at least one parent to file a complaint for child custody. In Mecklenburg County, before a parent can have a trial to determine the custody arrangement, the court requires that the parents complete a parenting education class. This may be completed by taking a four hour parenting education course online. Parents are also required to complete mediation, which may be conducted through a private mediation involving the parents, attorneys, and a mediator, or through a court-ordered mediation program. If parents are unable to agree to a custody schedule at mediation, they are able to then seek a court date for a permanent child custody hearing. At the custody hearing, both parents present evidence showing why it is in the child's best interest to spend more time with them or what custody schedule works best for the child. If you need to speak with a Huntersville child custody attorney, contact Adkins Law. One of our experienced child custody lawyers will be able to assist you through the child custody process. Without question, worrying about your children and making the time and effort to ensure that they are taken care of and provided for throughout the divorce process and after should be one of your primary concerns as a parent. However, it is also important to remember that in the midst of caring for your children, you also shouldn’t forget to care for yourself. After all, it can be hard to fill others up when you are feeling empty yourself. Sometimes, people can have a tendency to neglect self-care or put it in the back burner following a divorce, feeling that there are simply more important things deserving of their time. We would argue against this misconception, and would encourage you to remember that when you feel better, and when you have more energy, you are better able to meet the challenges of each day, and to care for those you love.
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 Huntersville family law attorney regarding your child custody arrangement, please contact Adkins Law to arrange a consultation. One of our Huntersville child custody attorneys can arrange a consultation with you to discuss your family law matter in detail. |
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