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.
When does child support terminate in Mecklenburg County? Child support terminates in North Carolina when a child reaches eighteen years of age, except:
1. It stops sooner if the child is emancipated.
2. If a child is still in high school when the child reaches eighteen, child support payments continue until the child graduates, ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age twenty, whichever comes first, unless the Court, in it’s discretion, orders that child support payments at age eighteen or prior to high school graduation.
If you have questions regarding child support or the termination of child support in Mecklenburg County, contact Adkins Law. We are located in Huntersville NC and serve the greater Charlotte area.
Filing for an absolute divorce in Mecklenburg County requires the following:
1. At least one party must have lived in North Carolina for at least six months prior to filing for divorce.
2. The parties must have lived separate and apart for at least one year and one day prior to filing for the divorce.
3. The plaintiff (the person who is filing the lawsuit) must be able to prove that he or she served the defendant (the person who is getting sued). This is usually done by mail or sheriff.
Once I file for divorce, how long does it take?
Although it may be possible to process a divorce in a matter of days (if both parties agree to expedite and appear in person before a judge), once the plaintiff files for divorce, it takes anywhere from three to four months on average for the divorce to be finalized.
Do I have to go to court?
No, in an uncontested divorce in Mecklenburg County, neither party is required to go to court. You may select to appear in court to expedite the divorce process, or you may have your attorney handle the entire matter for you.
How much will this cost me?
Court costs for filing a divorce in Mecklenburg County are $225.00. There is also a $20.00 fee for the hearing to occur, $10.00 fee if you wish to resume your maiden name, and approximately $10.00 to $30.00 fee to serve the other party (if they do not wish to accept service).
If you need representation in filing a divorce in Mecklenburg County, contact Adkins Law. In most cases, we can get all required information over the phone, have you verify and sign the filing documents, and process the divorce without the necessity of you having to meet in person or go to court.
by: Jacqueline Keenan
Do you feel that you are being threatened?
In North Carolina, it is illegal to try to stop a witness from testifying through threats or intimidation. Intimidation under this law can include threats of bodily harm or violence, cursing, vulgarity, or threatening language given the context of the statements as a whole.
These statements can be explicit, like “if you testify I’m going to break your arm,” or can contain language that implies a threat, like “I’ll give you a taste of your own medicine”, or “I’ll make you regret this”.
Threats made against a witness are a Class G Felony. In North Carolina, a Class G Felony alone can lead to a sentence of 8-31 months in prison. This is a serious crime!
Who is affected by this law?
The witness intimidation law protects any person who has been “summoned” or is “acting as a witness”.
It punishes any person who threatens, intimidates, attempts to intimidate, or prevents the attendance of a witness from any North Carolina state court.
The law also pertains to defendants in a criminal proceeding who threaten a witness in their case with the assertion or denial of parental rights.
What to do if you’re being threatened
If you are a witness and feel you are being threatened, it is important that you report the threat to the police or an attorney on the case, so they can take appropriate action.
If you’re interested in more information about witness intimidation, contact Adkins Law!
If you are contemplating separation and divorce, and need to speak with an experienced family law attorney, contact Adkins Law. We are located in Huntersville NC, and serve the greater Charlotte NC area.
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.
Domestic violence is far more common than we know. It is a problem that affects people regardless of race, gender, sexuality or socioeconomic status. If you or someone you love is being abused, it is important to come forward to seek help.
What is Domestic Violence?
Domestic violence is causing, or attempting to cause, bodily injury to the victim. It can also be placing the victim in fear of imminent, serious bodily injury. This may include continued harassment if it causes severe emotional distress.
It is important to remember that domestic violence can only occur between people who have a current or former relationship. This includes spouses, household members, parent/ child or boyfriend/ girlfriend.
What to do if you are a victim of domestic violence
Your safety is the biggest priority—get yourself to safety and call 911. If you do not have a safe place, you can seek help at a shelter.
From there, you have the option of seeking a restraining order and/ or filing criminal charges. Criminal charges are recommended because the criminal system has some procedures in place that the civil system does not, like probation and violent offender programs. If the abuser is found guilty at trial, then the terms and conditions of his or her sentence depend on various factors including what crimes the abuser has committed against you and prior offenses
How does domestic violence effect custody and child support?
It is rare for those issues to be handled in the civil domestic violence process of getting a restraining order. Many judges prefer that issues of child support and custody be handled in a separate action. You will need to file a separate complaint seeking custody and child support.
What about alimony and property division?
The judge in your domestic violence can only deal with these issues on a very limited basis, such as addressing temporary distribution of vehicles and the home. Many judges prefer that these issues be handled in a separate action. You will need to file a separate complaint alimony and equitable division.
Domestic violence proceedings can be confusing and time consuming, especially when dealing with other family law issues. Contact Adkins Law today to set up a consultation and decide your next steps.
Trusts are only for people with a high net worth!
Trusts can be set up to serve a variety of purposes and aren't only for "rich people". The most common type of trust is a living or revocable trust. A revocable trust is set up so that it can be modified during ones lifetime.
Trusts are Expensive to Setup!
Each state and attorney has its own prices when it comes to trusts. Contact attorneys in your area to get an idea of the cost. Generally attorneys have packages that include more than just a trust. Adkins Law specializes in Estate Planning and would be happy to help you!
You no longer in control of assets held in a trust!
With a revocable or living trust, you maintain complete control over all assets in the trust during your lifetime. Keep in mind, like most estate planning issues, credit protections vary and you should always work with an estate planning attorney to understand all your options.
Trusts are only for cash or financial securities!
Trusts can be set up to hold a variety of assets:
-Privately held interests in a business
Just to name a few!
The primary benefit of putting an asset in a revocable trust is to ensure the assets are distributed according to your wishes.
After I set up a trust, my assets will automatically flow as planned!
This may be true in some instances, however, this is not automatic and you must be careful not to contradict the terms of the trust. Once the trust is set up, retitle assets in the name of the trust.
I don't need a trust if I have a will!
Having a will in place is a great first step into estate planning. But, having a will does not mean your assets are completely secure. Wills can be contested, there is no guarantee that what you want to happen actually will happen if it is just outlined in your will.
It is generally a good idea to name a family member or friend as a trustee!
People often name relatives or family members as their executor of their estate and trustees on a trust. Sometimes this can create a strain on your family dynamics. Acting as trustee and/or executor or a trust and estate can be a large amount of work. You can always consider appointing an third party or corporate trustee to manage the assets and execute the wishes of your trust. My doing this it may alleviate the burden of appointing a family member and instead help in assigning a "neutral" party to act as trustee.
Trusts can be set up to benefit a charity, business organization, or even a pet.
Sometimes it is possible to assign percentages of your trust assets to a organization or charity of your choice. It is recommended you work with an attorney who may be able to assist in establishing the kind of trust that best fits to your needs for your family, maybe even your pets.
Trusts can be powerful and can accomplish a wide range of goals. They can be very difficult and sometimes hard to understand, That is why Adkins Law is here for you! We specialize in Estate Planning and we can work with your family in creating and drafting the Trust Document or Estate Package that best fits your needs for your family. Give our office a call to set up your FREE consultation.