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The Essentials of Child Custody in North Carolina

 

Child CustodyThe most difficult time for a family is during divorce or separation. Not only is it traumatizing to the couple but also it affects their children.   Several issues follow a divorce or separation. Such issues include child support, alimony, post separation support, and equitable distribution of property among others.

In the above examples, one of the most difficult for families in North Carolina is child custody. Child custody is difficult because it impacts the children in ways that can be far-reaching, especially if the parents have lots of conflict between them.   Therefore, the goal of parents should be to reduce conflict and reach an agreement that is best for the children..  However, what happens when parents cannot agree what is best for their children?

Absent a court order or written agreement in North Carolina, both the parents have equal rights to the custody of the child.    The law in North Carolina does not have a predisposition towards the mother or the father in child custody cases. Third party such as grandparents and other relatives can also have the right to the custody of a child in certain situations.

In North Carolina, the law of “best interest” applies to child custody cases.   The best interest of the child is, in the words of a famous child custody case from North Carolina, the “guiding star” upon which courts make child custody decisions.

There are two types of custody that courts makes decisions about: legal custody and physical custody.   Legal custody is about who makes decisions.  Physical custody is about the schedule of time with each parent.  These kinds of custody may be shared in various ways.  For example, one parent might have sole physical and legal custody and the other parent have visitation.  The parents might share joint legal custody and one parent has primary physical custody and the other parent has visitation

Child custody can be a matter of agreement between the parties. In such cases, they will sign a document settling child custody. However, in cases where they can not agree, the parents may go to mediation and court to resolve their differences.

In mediation a third person who is neutral comes in to try to facilitate an agreement between the two parties.  The mediator does not make any decisions; the mediator simply helps the parties get to a settlement.    Mediation is often less expensive and less time-consuming than litigation in court.

May the child decide whom he or she lives with?   In North Carolina, the answer is no.  However, the court may decide to consider the wishes of children if they are of an age where they can honestly express their preferences.

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Scott Allen is a divorce attorney in Raleigh, NC with over eighteen years of experience in all areas of family law litigation and settlement.

Filed Under: Child Custody Tagged With: , , , , , ,

Credibility and Honesty in the Courtroom

I heard this the other day and I thought I’d pass it on to you:  ”in the courtroom you have credibility one time.”   What does that mean?

It’s simple.   If you as a witness in court or a party  lie to the court or allow a misimpression to form, you will have lost your one shot at believability and you will never regain the trust and confidence of the court.    Credibility, once lost, is very difficult if not imposible to recover.  The loss of credibility can and will have a negative impact on your chances of getting the result you want from the court.

Here are some tips:

> Disclose everything to your lawyer.  If you withhold necessary information, your lawyer can’t properly prepare and pursue your golas or respond to matters in your case.

> Be honest with your lawyer.   Even if you have done some things you are not proud of, make sure your lawyer knows.  That information is necessary so you can get advice that has considered the true facts, not just the facts you think are helpful to your case.

> Take the oath seriously: tell the truth in court, your deposition, and when you sign a court paper.

 

Filed Under: Child Custody

When Can a Child Decide Custody?

Raleigh Child Custody EvaluationWhen can a child decide custody?

Rather than making you read more and then giving you the answer later, I’ve decided just to say it up front: under North Carolina law a child almost never has the final legal say as to which parent he or she will live with.  In other words, custody is always up to the judge.

If you have spent any time at all looking over our firm’s website, you know I am a strong advocate of parents trying to keep their children out of  custody fights.   I also generally don’t think a child should be put in a position of either feeling like he or she has to choose between parents or that the child has the power to make the choice.  All the judges I’ve ever been in front of seem to feel the same way.  I’ve heard judges explain to children who have been brought in for a custody case that the decision is not the child’s, and I have seen relief on children’s faces when they understand that.

The main determining factors that the judge will take a look at when deciding which parent receives custody are things like the  stability of the parent, their ability to provide for the child financially and mentally, and in general, just being a good model citizen and parent. It’s the judge’s job to award custody in a way to meet the best interests of the child.  A child’s statements about preferences are merely more evidence a judge can use in evaluating best interest.   Every parent knows that a child does not always know what is best for him or her.  Children,  by definition, lack the emotional maturity to make reasoned decisions.  That’s why the judge is free to agree with or disagree with the child’s own personal preference and is not required to do what a child says he or she wants.

 

 

 

 

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Divorce – Reduce Its Impact on Children

children and divorceDivorce – Reduce its impact on Children

Divorce can be stressful, sad and confusing for children. At any age, children will feel uncertain about what life would be like or angry at the prospect of their parents’ divorce.

To avoid trauma, parents need to make the process less painful to their children and the following tips can help.

Honesty: Children are entitled to some explanation about why the parents are divorcing, and a long-winded explanation will only confuse them. The parents should tell them something that is simple and honest but not accusatory of the other parent.

Reassurance:  In many divorce scenarios the child might assume that the parents are separating because of something he or she did. A simple reassurance will help them to know that they are not the reason.  Letting the children know that you still love them can be a very powerful message for them. Reassuring them that you still care about them is also of great help.

Address Changes: The worst fear about divorce in a child’s mind is change. The children might be scared about changes that might take place in their life in case the divorce goes through. Parents should preempt their children’s questions about changes that might take place by acknowledging that some things will be different but others will not change.

Respect and Restraint: The explanation should be offered by both parents. Parents should show respect and restraint when giving reasons so as not to bias the child’s opinion on one parent, but they should provide a united front.

Blame games: The parents should also avoid blaming each other or talking to outside parties about the divorce in the presence of their children. Avoid bad mouthing your spouse since this can make the child resent one of her/his parents. Let your child know that even if you have separated, you will continue to love them unconditionally. This is where visitation rights come in. The children need to feel that they still have the love of both parents even after separation.

Seek Advice:  These guidelines may not work in every situation and are one person’s view.  If you have a counselor or spiritual advisor, seek other advice too.

Divorce is traumatic for a child, and it is up to you as a parent to ease the pain and confusion.

 

 

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Raleigh divorce lawyer Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

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Guardians and the Family Law Case

In Raleigh, NC where I have practiced law most of the last seventeen-plus years there have been a few rare occurrences in my cases.  More rare than lunar eclipses in fact.  I am referring to the appointment of guardians in family law cases.

Under the NC Rules of Civil procedure a guardian may be appointed for a party or a child.  A guardian in this capacity is called a “guardian ad litem” and frequently referred to as a GAL.

Guardians are appointed for a party in a divorce case when that spouse is not mentally or physically capable of handling the matters related to the litigation.  For example, if a spouse suffers from schizophrenia or other serious psychological condition where their decision-making process is impaired, a guardian can be appointed.

It’s the guardian’s job to look out for the party’s legal interests and assist the attorney in prosecuting or defending the case. GAL’S for adults in domestic cases often have a very hard job.  They have to balance the duty to the party for whom he or she is guardian and listen to their stated wants and desires while using their best judgment about how to proceed forward in the divorce case.

It’s also a tricky situation for the attorney who thinks his or her client may need a guardian.  Frequently, however, there is a mental health professional who is making it clear that the client shouldn’t be or can’t make decisions for himself or herself.

Guardians for children have a similar role.  In family law cases, they are frequently appointed in cases where there are allegations of parental abuse or neglect that involve child protective services.  Children’s guardians are somewhat rare in Wake County in the “normal” child custody case where two parents simply disagree over scheduling and decision-making issues.

The guardian for a child in a case has the ability to report to the court how the child doing and be a voice for the child’s interest in the court process.  I have seen instances where the  GAL takes the witness stand and reports on how the child is doing in school, in therapy, and what the GAL wants for the custodial arrangement for the child.

Of course, whatever the GAL says in court, the final decision in a custody case is for the judge to make.  However, judges frequently give great weight to the statement of the guardian.

 

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Raleigh lawyer Scott Allen has litigated  cases involving guardians in custody, equitable distribution and alimony

If you have questions or need assistance call him at (919) 863-4183.  

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The Affidavit in North Carolina Family Law Cases

An affidavit is a written statement confirmed by oath or affirmation for use as evidence in a court case.  The person making the affidavit is called the affiant.  In family law cases in North Carolina affidavits are frequently used for a number of different purposes.

The following list is not exhaustive, and the creative use of an affidavit can help almost any case.

Financial affidavit.  This is a statement of the affiant’s income and expenses.  They are frequently used in postseparation support, alimony, and child support hearings.  In theses hearings the court will examine the financial affidavit of each party and receive financial evidence to determines need and ability to pay postseparation support and alimony.   Financial affidavits are used sometimes in child support cases where there is a request to vary from the application of the North Carolina child support guidelines.

Equitable distribution inventory affidavit.   This is a statement by the affiant of his or her property and debts for purposes of an equitable distribution action.  This kind of  affidavit usually has a listing of what the party claims to be marital, divisible, and separate property and debt as well as date of separation and current values.

Affidavits of expert witnesses.  In some situations it is appropriate to ask an expert to prepare a sworn statement.  For example, in a postseparation support case where the payor will get a tax deduction and the recipient will have to pay taxes, one or both parties may hire an expert to give an opinion on the tax impact of different amounts of postseparation support.

Affidavits in child custody cases.  Many North Carolina judicial districts allow the use of sworn statement in temporary child custody cases.  Durham County is a good example of this.  Often these kinds of affidavits are prepared by non-party witnesses.  For example, it is frequent to see an affidavit from a child care provider.  Affidavits are not used in Wake County temporary child custody cases.

Affidavits in support of other motions.   There are many examples of other kinds of affidavits in North Carolina family law cases.  For example, the attorney fee affidavit, affidavit in support of a Rule 59 motion or in response to a Rule 59 motion.

Tips for writing an affidavit:

  • The best affidavits are written by the person making the affidavit.  The affidavit is the testimony of the affiant, not the lawyer or someone else.
  • It should be based on facts and observations of the affiant, not opinion.
  • A letter is not the same thing as an affidavit.
  • It should use plain language and be free from typographical and grammatical errors.
  • An affidavit must be sworn to.

 

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The Child Custody Evaluation in Wake County, North Carolina

Raleigh Child Custody Evaluation

Raleigh Child Custody and Wake County Child Custody Evaluations

A child custody evaluation is a valuable tool in contested Raleigh child custody cases in North Carolina.  In this article I will explore some of the frequent questions I get about the custody evaluation over my years of practice in the Wake County family court in Raleigh, NC and other counties around North Carolina.

What is a child custody evaluation?  

Generally speaking, a child custody evaluation is a forensic examination of the children and parents by a qualified person.  The evaluation report will present the information gathered, an interpretation of the information, and make recommendations for the family.  The recommendations may include, for example, custodial schedule, suggestions about communication, and the need, if any, for individual and family counseling.

What is the purpose of the child custody evaluation in North Carolina courts?

As with any expert witness, the purpose of an expert is to assist the district court judge hearing the child custody case in making a fair and fully informed custody decision.  A child custody evaluation, no matter what the recommendations are, is not a replacement for the final judgment of the court.  The trial court may elect to use the recommendations; however, there is no requirement for the judge to do so.  The district court judge also has the choice to place little credibility in the evaluator’s opinion.

When can a child custody evaluation help?

I believe they can help in any Raleigh child custody or NC custody case that is being litigated because when the parents can’t agree and a judge must decide, the kind of information provided by the report almost always helps the court make a decision.

When can a child custody evaluation hurt?

On an individual basis, it would not be wise for a party who has psychological problems and parenting issues to request a child custody evaluation because these problems are likely to be highlighted in the experts’ report.  Of course, this sets up the tension between a parent’s individual desires for a particular custodial arrangement and what is truly in the best interest of the child.

A forensic child custody evaluation should be considered in any high-conflict case and in cases where there are suspicions of substance abuse, sexual abuse, or other similar factual situations.  The American Psychological Association has published guidelines that are useful.

What are the other downsides to a custody evaluation? 

They are expensive and they add several months to the custody litigation process.  In Raleigh child custody cases an expert may cost between $4,000 and $12,000.  the cost can vary by location because different experts frequently serve different areas of the sate.   There is a range that experts in the field charge and the number of children and complexity of the case all go into the wide range of possible costs.   The other obvious issue is how long the process takes.  The expert not only has to do interviews of the parents and children, but performs psychological testing, reviews of relevant documents, and interviews collateral witnesses.

 

  

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Emergency Child Custody in North Carolina

Child Custody Best InterestThe law in North Carolina is that a parent may seek emergency custody in limited circumstances when there are extreme safety concerns or there is a risk that a parent will move or has moved the child from North Carolina to avoid this state’s jurisdiction.  In North Carolina child custody cases, emergency temporary orders may be entered upon the request of one party without the other party being present in court.  This is called an “ex parte” hearing and in this type of hearing only one side tells the court its version of events.   The ex parte order, if entered by the court, will be reviewed with notice and an opportunity for the other party to be present within ten days.

Reasons for emergency custody are varied, for example, an ex parte custody order may be entered if a child is abandoned.  Another example where an ex parte order is appropriate is if the child has been a victim of physical abuse by a parent.

Many parents think that emergency custody can be sought in every situation; however, that is not the case.  District court judges generally look very closely at applications for ex parte emergency custody and will refuse to enter an order unless the facts clearly rise to the level requiring the court to enter an order.

Judges look at ex parte applications for emergency custody and supporting affidavits closely because of the danger of abuse of the process when only one side gets to tell his or her story and because the relief that is being asked for usually involves a child being taken away from the other parent, frequently with the involvement of the police.

If an ex parte emergency custody order is entered there will be a return hearing where both sides should be prepared to present evidence to the court.  In this hearing the plaintiff (the parent seeking emergency custody) will be asking for an order to remain in place.  The defendant will be arguing and presenting evidence that there is no emergency.   Frequently courts will use the return hearing to fashion a temporary order in an effort to add stability for the children and to establish a framework for the parents’ interaction.

If you think your case has facts that justify a request for emergency custody, you should contact an attorney to assist you with evaluating the situation and get advice on how best to proceed.  If the facts do not support emergency custody, then it is always best not to file the emergency request and proceed with a custody request and set temporary child custody for hearing.

 

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Raleigh divorce lawyerScott Allen handles emergency custody claims, child custody, and temporary custody hearings and has over eighteen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

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Attorneys Fees – NCGS 50-13.6

The usual rule of law in North Carolina and the U.S. is that a party must pay his or her own attorneys fees unless there is a staute that that shifts the burden to the  other party.  We have such a statute in NCGS 50-13.6 that allows the district court judge to award attorneys fees to a party who is unable to pay in a child support or child custody case.

The district court judge has much discretion in deciding whether to award attorneys’ fees and how much to award.  Different judges have different views of how much to award in fees.

 

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Raleigh divorce lawyer Scott Allen handles modification of custody, child custody, child support and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

Filed Under: Child Custody, Child Support, Family Law Library

Child Custody and How Do I Enforce My Child Custody Order?

Raleigh Child Custody

Child Custody Orders and Enforcement

I get lots of calls and questions about what happens when a parent violates the terms of a child custody order in North Carolina.  There is no automatic punishment in such a situation.  This is a surprise to many people.  Furthermore, law enforcement can not simply go and arrest somone because you accuse them of violating a court order.  One party has to go to court and ask a judge to hold the offending party in contempt of court.

The relevant NC statute is NCGS § 50‑13.3.  Enforcement of order for custody.  It provides:

(a)        An order providing for the custody of a minor child is  enforceable by proceedings for civil contempt, and its disobedience may be punished by proceedings for criminal contempt, as provided in Chapter 5A, Contempt, of the General Statutes.

Notwithstanding the provisions of G.S. 1‑294, an order pertaining to child custody which has been appealed to the appellate division is  enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. Upon motion of an aggrieved party, the court of the appellate division in which the appeal is pending may stay any order for civil contempt entered for child custody until the appeal is decided, if justice requires.

(b)        Any court of this State having jurisdiction to make an award of custody of a minor child in an action or proceeding therefor, shall have the power of injunction in such action or proceeding as provided  in Article 37 of Chapter 1 of the General Statutes and G.S. 1A‑1, Rule 65.

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Raleigh divorce lawyer Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

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What is Parental Alienation?

Raleigh Child Custody EvaluationParental Alienation is a condition where a child, usually through the experience of having their parents divorced or separated, feels an unjustified hatred or extremely strong dislike of one parent. This makes it difficult or in some cases impossible for the parent to have a relationship with their child during this period of time.

Such feelings of parental alienation are indicated when a child shows no empathy or warmth toward the rejected parent. Such feelings can be exacerbated by others with negative comments or other similar actions.

Parental alienation should not be confused with child abuse, the two conditions are generally unrelated since a child acting in fear of what a parent has done before is symptomatic of child abuse. Parental alienation is a child reacting to the changing family situation and responding in a manner that usually not related to what the rejected parent has done, but the feelings that arise when divorce or separation occur.

Parental alienation is still somewhat controversial in both the legal and medical professions. While there is little doubt that children can react in a negative manner to a parent after a divorce or separation, there is still not enough evidence to suggest that this may be a syndrome or actual psychological condition.

The history of parental alienation is brief one with the first serious studies being performed in the 1970s. Richard A. Gardner proposed the idea of parental alienation syndrome based on his studies, a view that has generally not been accepted by the medical community at large. But other research has pointed more towards the alienated child and the social dynamic of divorce and separation on the family unit. The breakdown of communication between the child and the rejected parent may involve several factors beyond the break up of the family.

Such alienation may include other members of the family and how they express their feelings towards the rejected parent. Therefore, tackling this issue in therapy generally goes beyond attempting to re-establish the bond between parent and child, but the dysfunction of the entire family must be handled as well. Often, the parent that the child attaches to may promote the alienation of the other parent, even if that was not the intention. But the showing of disappointment, anger and negative comments can promote the feelings of rejection in the child.

In some cases, the actions of the rejected parent may contribute to the alienation even if unintentionally. Fathers in particular are usually the recipient of rejection in these cases. In many instances the father does not seek an emotional, sympathetic bond but instead enforces a rigid attitude and a critical attitude which may be meant to impose discipline on the child, but instead drive them further to reject the parent.

Parental alienation is a complex issue that can involve many factors which on the surface may seem benign, but they contribute to the feelings of the child and exacerbate a situation that could either be easily treated or avoided entirely.

 

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Raleigh divorce lawyer Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

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Best Interest of the Child in North Carolina

Child Custody Best InterestNC law states that custody should be determined by what is in “the best interest of the child.”   Unfortunately, parents often disagree on what is best for their children.  I have practiced divorce law in Raleigh and other counties around North Carolina and have litigated custody cases with almost every parent and child issue one could think of, so I know what the courts are looking at when they have to decide best interest.

Child custody disputes between parents are stressful.  They are stressful not only for parents but for the children.   It is always best for parents to work together and decide between them how to settle child custody.  Unfortunately, this is not always the case and the court must step in and make a determination based on what is in the child’s best interest.

Our firm works closely with our clients to settle custody if possible.  However, if the parents can’t agree then the courts will determine what custody arrangement is in the best interest of the child after a hearing on child custody to determine best interest.

Some of the issues the district court judge will examine in deciding the best interest are

  • Is there a history of domestic violence in the family?
  • What is the employment and financial security of each parent?
  • What is the availability of a parent to provide care?
  • which parent has traditionally been making the health, educational, and  other important decisions for the children?
  • Does a parent have any psychological, emotional or physical issues that would affect his or her ability to parent?
  • Does one parent interfere with the relationship between the child and the other parent?
  • Is a child being exposed to inappropriate third parties or material that is not appropriate to his or her age?
  • Has there been any neglect and abuse by either parent?
  • Do the parents live close to one another or far away?
  • Do either of the parents have any substance abuse or drug use issues?
  • Which parent has historically been the caretaker of the children and why?
  • What have been the living arrangements for the child if the parties have been separated?
  • What is the child’s preference (in certain cases where the child is old enough)?
  • Has a parent manipulated or tried to manipulate the child’s preference?
  • Does a child have special needs (physical, medical or psychological) that one parent is better equipped to handle?

This list of questions is not complete because any issue that relates to best interest could be a point of concern for the court.

 

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Raleigh lawyer Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

 

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Can a Child Decide Which Parent Gets Custody in NC?

Testimony of a Child in NCI often get asked what impact a child’s wishes has on the court’s determination of custody.  In North Carolina, your child does not get the final say.

The law is that the court may use what a child tells him or her as evidence, but the final say is the judge’s.  North Carolina law does not set out an age when a person may be a witness in court.  The legal test is whether the minor is a competent witness and that means they have to be able and old enough to know what it means to tell the truth and can express them selves in an understandable way.

Unless both parties agree, the child must testify from the witness stand.  This is a very stressful event for the child, the parents, lawyers and judge.  Usually, if a child is going to be brought in, everyone wants the impact on the child to be reduced as much as possible.   Usually there is an agreement that the district court judge will talk to the judge in her office.

Regardless of what a child has to say about their preferences, a judge may decide in favor of the other parent.  This is because sometimes the district court judge with find that what the son or daughter is saying has been “bought” by a parent with promises.   Sometimes, the court might find that the child simply does not know what is best for herself.  For example, the parties’ son might prefer to live with the parent who has fewer rules, more flexibility  with curfews,  or  who does not make them do chores.  The maturity of the minor is a factor for the judge to evaluate.

In conclusion, deciding where the child should live is about what is in the best interest of the child and not about what the child says he or she wants.

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Raleigh child custody attrorney Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

 

 

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Parent Coordinator in Child Custody Cases

Parent CoordinatorA district court judge in North Carolina may appoint a parenting coordinator in child custody cases.  A parent coordinator is a person designated by the court and assigned to the case to reduce conflict between the parents for the welfare of the children in high conflict child custody cases in Wake County and other counties in North Carolina.
The parent coordinator may be appointed to  identify disputed issues, reduce misunderstandings, explore compromise, clarify priorities, develop methods of collaboration in parenting, and ensure compliance with the court’s custody order.  At any time in a child custody case the district court judge may appoint a parent coordinator if all the parties agree and consent to the appointment.  Furthermore, the court may appoint a parenting coordinator without the consent of the parties upon entry of a custody order if the court finds that:
  • The action is a high-conflict case and the appointment is in the best interest of the child or children.
  • The parties are able to pay the cost of the coordinator.
  • The appointment order must specify the issues the coordinator is to assist the parties in resolving and may incorporate any agreement made by the parties as to the coordinator’s role.
A high-conflict custody case is one where the district court judge finds that the parties demonstrate an ongoing pattern of excessive litigation, anger and distrust, verbal abuse, physical aggression or threats of physical aggression, communication issues regarding the children or other conditions that the court determines warrant the appointment of a parenting coordinator.
In North Carolina the district court maintains a list of qualified parenting coordinators. To be eligible, the person must meet the following requirements:
  • Hold a master’s degree in psychology, law, social work, counseling, medicine, or a related subject area.
  • Have at least five years of related professional experience.
  • Hold a current license in the parent coordinator’s area of practice.
  • Complete the required training in topics related to the developmental stages of children, the dynamics of high-conflict families, stages and effects of divorce, problem solving techniques, mediation and legal issues.
  • To remain eligible, the person must also attend parent coordinator seminars providing continuing education, group discussion, peer review, and support.

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Raleigh divorce lawyer Scott Allen is a designated parent coordinator in Wake County.  He also handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  


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Wake County Child Custody Mediation

Child Custody in NCWake County Child Custody Mediation.

The Wake County child custody mediation program  was created by G.S. §§ 50-13.1(b), 7A-494, and 7A-495.

Any case with a contested issue of custody or visitation must be referred to mediation unless excused by order of the assigned  district court judge.   The statute requires that a case be sent to mediation “[w]henever it appears to the court, from the pleadings or otherwise, that an action involves a contested issue as to custody or visitation … .”    This includes issues that arise in motions for modification of child custody and for contempt related to temporary child custody and child custody orders.

How is Wake County Custody Mediation triggered?

When a child custody complaint or motion for child custody is filed in Wake County, the process of child custody mediation is triggered by the filing of a coversheet with the filed request for custody.  The parties are notified when the mediation orientation is scheduled.

Where Does it Take Place?

The custody mediation takes place at the Wake County Court House in Raleigh (directions).   The first step is an orientation (where the parties learn about the process).  At the orientation session, a date for the mediation session will be set.  Failure to show up at the orientation or mediation session may result in a contempt motion and order being issued by the court.

Who Are the Mediators?

The orientation session and the mediation session are handled by county-provided mediators.  Attorneys are not part of either the orientation or the mediation session.  The county pays for the mediators time.   A mediator is a neutral person and is not there to impose a decision.  The mediator’s job is to help the two parents come to a mutually agreeable resolution of custody.

What Can Be Discussed?

The child custody mediation is not an appropriate place for parties to mediate alimony, child support, and other economic issues.  Many times parties will want to get into these issues but the mediators are trained to firmly insist that the program is only about child custody.

Can it be Waived?

Mediation under the North Carolina statute is mandatory unless waived by the court for good cause shown by a party pursuant to a motion of either party or the court.  Grounds for not requiring the mediation are:

  • A showing of undue hardship;
  • An agreement between the parties for voluntary mediation;
  • Allegations of abuse or neglect of the child;
  • Allegations of alcoholism, drug abuse, or domestic violence between the parents;
  • Allegations of severe psychological, psychiatric, or emotional problems.

What Happens if Mediation is Successful?

Finally, if mediation is successful, the mediator will prepare a draft parenting agreement which will be sent out to the parties and their attorneys for review.  If they agree, the parenting agreement is signed by the parties and unless the court finds good reason not to, the agreement must be incorporated into a court order. This Parenting Agreement/Court Order is enforceable by the contempt powers of the court and is subject to modification.

What If You Need a Lawyer?

Call me at (919) 863-4183 or send an email to me at sallen@allenspence.com.   I am familiar with the mediation system and can help you get into mediation with the other parent.  I can also help you if your case must go in front of a judge on custody issues.

 

 

 

 


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Temporary Custody in North Carolina

Temporary child custody is an important component of the trial court’s powers to protect children in North Carolina.

G.S. § 50-13.5(c)(2) and (d)(2) give the district court jurisdiction to enter temporary custody and support orders for minor children.  G.S. § 50-13.5(d)(2) provides that temporary orders may be entered “[i]f the circumstances of the case render it appropriate.”  That statute gives the judge a great deal of discretion about when and hot to have a temporary child custody hearing and what the order will say.

In Wake County, North Carolina, if a complaint or motion for child custody is filed and there is a request for temporary child custody, a hearing for temporary child custody is automatically scheduled.  That temporary child custody hearing is scheduled for two hours at the courthouse in Raleigh and each party is given one hour to call witnesses, present evidence, and make their case for the temporary award.

A temporary child custody order establishes each party’s right to custody pending the resolution of a claim for permanent custody and establish order for a family that is in a chaotic situation.  The court will often establish both a legal custody arrangement and a physical custody arrangement.   The temporary child custody order is, in many ways, only a stop-gap measure by the court to impose a schedule when the parents cannot agree,

In certain custodial situations a temporary child custody order may be entered ex parte under appropriate circumstances such as when there is a risk or harm or one parent is fleeing the state with a child.  The statute is clear that a temporary order that changes custody or changes the living arrangements of a child cannot be entered ex parte unless the child risks bodily injury, sexual abuse, or removal from the state for purpose of evading the jurisdiction of the court.  You can find more information about emergency custody here.

Unlike the rules about preliminary injunctions, a temporary custody order entered ex parte does not expire automatically after ten days.

The statutes and case-law do not preclude a temporary custody hearing after a motion to modify a permanent custody order has been filed. Also, there appears to be no statutory prohibition against asking the court to modify a temporary order.

Finally, just as in a full hearing on custody, the court may consider a request or make its own motion for the appointment of a parent coordinator.

If you are facing the prospect of a temporary child custody hearing then you should obtain the assistance of an attorney.   The temporary child custody hearing is very important because it establishes legal rights and obligations and is sometime a framework for what the permanent child custody order will look like.

 

 

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Raleigh divorce lawyer Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over eighteen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

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Custody and Visitation by Skype and Facetime

Skype, Apple Facetime and other video-conferencing technologies are being used more and more between parents and their children who are living primarily or temporarily at long distances.  North Carolina law allows the district court judge to order parental visitation via electronic communication in G.S. § 50-13.2(e).

Other states such as New Jersey are adopting laws allowing virtual visitation as well.

“Electronic communication” is defined in the statute as contact, other than face-to-face contact, facilitated by electronic means, such as by telephone, electronic mail, instant messaging, video teleconferencing, wired or wireless technologies by Internet, or other medium of communication.

To grant visitation by electronic communication the North Carolina district court judge must consider:

  • Whether electronic communication is in the best interest of the minor child.
  • Whether equipment to communicate by electronic means is available, accessible, and affordable to the parents of the minor child.
  • Whether there is any other factor the court deems appropriate in determining whether to grant visitation by electronic communication.

The statute does not allow electronic communication as a replacement or substitution for custody or visitation.   This an important point, especially for parents who live long distances form their children.  Also, this makes it clear that electronic communications are merely a supplement to face-to-face and in person visitation.

Electronic communication between the child and the parent may be subject to supervision as ordered by the court.  This no different from any other power the district court judge has to set the parameters of custodial time.

Finally, anticipating that the issue would come up in a child support calculation or modification, the general assembly has made it clear that the amount of time electronic communication is used shall not be a factor in calculating child support. Likewise, the amount of electronic communication may not be used to justify or support relocation by the custodial parent out of the immediate area or the State.

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Wake County family law attorney Scott Allen handles custody and child support cases every day and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.

 

 

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Modification of Child Custody in North Carolina

North Carolina law allows for the modification of a child custody order under certain circumstances.   This article explores the  law and the circumstances allowing the trial court to modify a custody order.

This article assumes that a North Carolina custody order is in place.  A separation agreement that has not been incorporated is not a court order.  A parenting agreement or consent order that has been signed by the parents and the judge is a court order.  An order of a different state that has been registered to allow modification is also the kind of order that can be modified.

Recall that if a judge hears a child custody case where there is no order in place or there is only a temporary order, the legal standard in North Carolina is the best interest of the child.

In a modification proceeding there are actually two legal hurdles before a court may change the order.  G.S. § 50-13.7(a) allows an child custody modification “at any time, upon a motion in the cause and a showing of changed circumstances,” except as otherwise provided in G.S. § 50-13.7A.  (50-13.7A deals with certain situations where a parent is in military service).

The best interest of the child is not considered until there has been a showing of a substantial change affecting the child.    The district court judge must find a substantial change of circumstances before it can change an existing order.

The party seeking modification has burden of showing changed circumstances. However, after there has been a showing of a substantial change affecting the child, neither party has a burden of proof on the question of best interest.

There is no statutory amount of time that must pass before a motion to modify may be filed as long as the person filing the motion can meet their burden and prove a substantial change of circumstances.

So what kinds of circumstances may the court consider?  It is not possible to make an exhaustive list but the basic rules are:

  • The change of circumstances must be substantial;
  • The district court judge must consider changes that have salutary effects upon the child and those which will have adverse effects upon the child;
  • Speculative evidence that a substantial change may occur sometime in the future will not support a change in custody.
  • The evidence must demonstrate a connection between the substantial change in circumstances and the welfare of the child.

Raleigh family law attorney Scott Allen handles child custody cases every day  and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.

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Jury Trial in North Carolina Family Law Cases

Most family law cases in North Carolina are heard in district court by a district court judge sitting without a jury.   When a judge hears a case without a jury, the judge decides both how to apply the law to the case and what the facts of the case are.

Although not a typical family law case, claims for alienation of affections and criminal conversation may be heard by a jury if either party makes a timely demand.  In alienation of affections and criminal conversation the jury decides both liability for the claims and the money  damages to award (or not award) to the plaintiff.

Either party in an alimony case has the right to request a jury trial; however, North Carolina law limits the jury’s involvement to the determination of marital misconduct or fault.  A jury in an alimony case cannot set the amount or duration of the alimony award.

A jury trial is absolutely not available in child custody or child support cases or in equitable distribution of property cases; however, one may be demanded in an absolute divorce,  divorce from bed and board and annulment actions.

Family law attorney Scott Allen has litigated cases before judges and juries and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.

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How can a custody claim be made under North Carolina Law?

Child Custody in NCA claim for child custody may be made in North Carolina in several ways.  The traditional way is to file a complaint for child custody.  The complaint for child custody may also include claims for alimony, child support, absolute divorce, divorce from bed and board and equitable distribution.   Also, a party may make a claim for custody in his or her counterclaim (filed in response to a complaint).

Another way child custody actions begin in North Carolina is when there is already a pending family law case and a party files a motion in that case.  For example, if the parties have a pending equitable distribution case, a motion in the cause for child custody may be filed in the pending domestic case.

Unlike alimony and equitable distribution (the two claims that must be made prior to the entry of the divorce judgment), North Carolina child custody law provides that a custody claim may be brought at any time so long as the party claiming custody has legal standing to make the claim.

The final way a custody claim may be started is by the district court judge by its own own motion in an action for absolute divorce or divorce from bed and board.  In seventeen years of practice in many different counties in North Carolina, including Wake County, Johnston County, and Durham County, I have never seen a judge start a custody case on his or her own motion.

Once a parent understands how to start a claim for custody in the courts, the next issue is whether he or she will hire an attorney or go into it without an attorney.   Most people, given the complexity and importance of child custody would want a lawyer.  The problem almost always in one of costs, and in North Carolina there is no right to have an appointed lawyer in a custody case.

Here is a short video from findlaw.com.  It is a genearl video but does help define some terms. For more information on custody terms read my article here.

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Legal, Physical, Joint and Primary Custody: What’s in a label?

NC Child CustodyI’ve represented many parents in many custody cases.

In almost every case I get asked about the definitions of “legal,” “physical,” “primary” and “joint” custody.  Clients have a great deal of anguish about the labels, even after the litigation has started.

“Legal custody” is not defined in the general statutes of North Carolina. However, a few cases have talked about what “legal custody” means.  It refers to the right and responsibility to make decisions with important and long-term implications for a child’s best interest and welfare.   For example, a child’s education, health care, and religious training decisions if given to both parents are a form of  joint legal custody.

“Physical custody” is defined in the North Carolina general statutes and is the physical care and supervision of a child.

Conceptually, physical custody is about where the child is and legal custody is about who makes important major decisions for the child.  In general, if a court grants one parent legal custody and not the other, it does not mean that the parent without legal custody can’t decide day-to-day matters for a child.

“Visitation,” while not defined in the North Carlina general statutes, is defined by appellate cases as a lesser form of physical custody.  In general, one often deals with a “primary custody” and “visitation” order where the court simply decides to use those labels and define a custodial framework.  The truth about these labels is that the same order could define the schedule as “joint physical custody” and refer to each parent’s custodial time and grant one parent primary legal custody to the same effect.

If anything should taken from this jumble of definitions is that in making decisions about what you believe is the best custodial arrangement for your child, you should think in terms of how time is shared and how important decisions are made and not get wrapped up in the labels.

Family law attorney Scott Allen handles custody cases every day and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.

 

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Why would I need a child custody order?

This is one of the questions I get asked all the time by parents going through divorce: “Why do I need a child custody order?”

The answer is, in a word, enforcement.

A court order, that is a document signed by a judge requiring certain behavior, is very different from a private agreement.   A court order has the authority of the state behind it.  That means that if a person doesn’t comply there are rules and procedures to obtain compliance that can range from a simple admonishment to jail.  So, if you have a court order for custody and let’s say it compels a parent to do certain things and that parent does not… then the court can punish the noncompliance.

Contrast the court order with a separation agreement.  A separation agreement is a private contract that spouses enter into to make arrangements on a wide range of issues, and often includes agreements about custodial schedules and parenting.  A separation agreement, just like any  other private contract, is enforced by filing a lawsuit for breach of that agreement or an action to ask the court to compel compliance.

So, if you worry that the  other parent will make things difficult for your custodial access, then it’s easy to see what a court order related to the custodial schedule would be better.

North Carolina family law attorney Scott Allen  has over seventeen years of divorce law experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.

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