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[1]. 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. [1] 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 Huntersville custody attorney regarding grandparent visitation and child custody, please contact Adkins Law to arrange a consultation. One of our experienced Huntersville child custody lawyers can arrange a consultation with you to discuss your grandparent visitation rights in detail.
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Understandably, the issues of child custody and child support often go hand-in-hand. Though divorce may end the marital relationship, it certainly does not end the relationship parents have with their children – or their obligation to support those children. And without question, most parents want to support their children – out of love, and not simply because the law requires it. As with child custody, given our modern trend toward cooperative and collaborative legal negotiation, child support obligations may be determined by the parties based on their needs and lifestyle, or it can be determined by the court based on statutory guidelines.
Regardless of which method you ultimately choose to determine child support amounts for your particular situation, having a basic understanding of how child support generally works can be beneficial – after all, the more understanding you have, the easier it will be to negotiate and settle upon an agreement that works well for everyone involved. Most often, child support is a monthly payment from the non-custodial parent to the custodial parent to provide for the couple’s children who are in that parent’s custody. Its purpose is to ensure that even though the family is transitioning from one home to two, the children are able, to the greatest degree possible, to maintain their usual routine and standard of living. It is typically a long-standing arrangement, often lasting until the children in question are eighteen years old[1]. Defining Support in a Parental Agreement As with issues of child custody, if you believe that you and your spouse are capable of working cooperatively towards a goal together, then addressing it in a separation agreement is an excellent option, as it gives you more leeway to determine what works best for your particular circumstances, and more flexibility to make changes to the agreement as your life situation changes. Choosing to address child support in a separation agreement means that you can ensure that your agreement fits your needs – even if those needs are different than what is normally provided for under the legal guidelines. For example, in a separation agreement, the parties may agree to extend support payments beyond the age of eighteen, address payment of private school or college tuition expenses, or attend to other circumstances that are important to the parties but that might not be provided for by law. Allowing the Court to Determine Support If parents are ultimately unable to come to an agreement on child support themselves, they can always ask the court to make the determination. Once the parties have requested the court to make that determination, the court is not bound by any support obligations previously set forth in any separation agreements. In North Carolina, courts determine child support obligations using the North Carolina Child Support Guidelines. These guidelines were created to help calculate support obligations, and are revised at least every four years to adequately reflect cost-of-living increases. To determine your approximate child support obligation, you can use the calculator provided on our website, and can also download the appropriate child support worksheets utilized for calculating potential obligations. Typically, there are three worksheets used for calculating support under the guidelines:
Generally, when determining a support obligation, the court will look to the income of both parties from all sources. This includes not only the salaries of the respective parties, but also any stock options, IRA accounts, investments or other sources of income. In addition to considering the income of both parties, the court may also consider other factors, including, but not limited to:
Courts will often also consider and add extraordinary expenses, like special child care, extra medical expenses, counseling expenses, or necessary special education expenses, and will allocate those expenses between the parties as the court deems reasonable in its discretion. Though in the vast majority of cases, courts use the North Carolina Child Support Guidelines in determining support obligations, there are certain situations in which courts will deviate from those guidelines. Some of these circumstances include:
In these cases, courts will make the support determination on the basis of the child’s actual needs and expenses, as opposed to utilizing the formula set forth in the guidelines. Regardless of how the support obligation is ultimately arrived at, after it has been determined, North Carolina law allows for one spouse to pay the support directly to the other at the required times, if both parties are in agreement. In other instances, however, child support can be paid through the North Carolina Child Support Centralized Collections (NCCSCC), who will then send the child support to the receiving parent through either direct deposit or debit card. Often parents choose to send support payments through NCCSCC in order to have a documented record of all support payments made from one parent to the other in case a dispute should ever arise. In discussing support, it should also be noted that parents who are in the midst of the divorce process may request temporary support, even if the divorce has not yet been finalized. This makes sense after all, particularly if one spouse has already moved out of the marital home. In these instances, the party needing the support can request a hearing for temporary support, and following a hearing, the court can enter a temporary support order, which will remain in place until a permanent child support order is issued. Requesting temporary support involves a number of steps, it is always a wise decision to seek the help of a trusted attorney in doing so. [1] It is important to remember that if you have more than one child, and your child support agreement or order does not allocate the support amounts between the children, then you must seek a modification when one of the children reaches the age of 18 instead of simply stopping the payments, unless the original agreement or order contains an automatic termination date for the obligation. It should also be noted that if your child is 18, but is still attending high school, you cannot seek to terminate your support obligation until the child graduates, otherwise drops/fails our of school, or turns twenty, whichever is first. If you need to speak with an experienced child support lawyer, please contact Adkins Law to arrange a consultation. A premarital agreement, also known as a prenuptial agreement or prenup, is a written contract created by a (sometimes engaged) couple before they are set to be married. The contract typically outlines all of the property owned by each person; this can include cars, stock accounts, bank accounts, etc.. All items are specified in the written contract so that each person can determine what is to happen to that property, if the marriage were to ever end with divorce.
North Carolina has adopted the Uniform Premarital Agreement Act (UPAA). The UPAA allows parties to contract with respect to: 1. Division of Property - the division of property during marriage and upon divorce. 2. Alimony - Alimony and the waiver of alimony. Waiver of alimony agreements will be upheld unless doing so will cause the disadvantaged spouse to be eligible for public assistance. 3. Child Support - Child support arrangements will be upheld as long as they provide for the reasonable needs of the child(ren). There are some people that believe the rich and famous are the only ones to create prenups BUT this is not true. Prenups are merely used to protect the assets of each individual, avoid conflict in the event of divorce, avoid your significant others debts, as well as clarify finances with your significant other. Without a prenup the property is split as martial property in a divorce judgement. If you are thinking about creating a prenup with you and your significant other we can help to draft the document for you. Keep in mind that an attorney is not needed to create a valid pre-marital agreement. Failing to hire a family law attorney may, however, affect whether the agreement is fair, valid, and enforceable. Adkins Law is able to provide you with advice and assistance with the creation of a valid premarital agreement. Contact us to schedule a consultation with an experienced family law attorney. |
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