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No Child Support, No Visitation?

 

NC DivorceDoes a parent who can’t (or won’t) pay child support still have custody and visitation rights?  Under North Carolina law, the answer is yes.

A child has a right to be supported by his or her parents and the court has the authority to enter order establishing child support and enforcing child support.

A parent has a right to spend time with his or her child.  This right has been declared to be a constitutionally protected interest.

What this means os that a parent who does not pay child support or who is behind in child support still has a right to be with his or her children.  A parent who refuses to allow visits because the other parent is behind or not paying support may be held accountable by the courts.

However, be aware that non-payment of support ordered could be a grounds for termination of parental rights.  If a parent’s parental rights are terminated for non-payment of support (or for other reasons such as abuse or neglect) that parent does not have any right to visitation or custody.

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Raleigh divorce lawyer Scott Allen handles modification of custody, child custody, child support, temporary 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.  

 

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Temporary Child Support in Wake County, North Carolina

temporary child support in North CarolinaTemporary child support is child support ordered pending a final determination of child support.   Under Wake County local rules, temporary child support hearings are limited in duration to one hour of court time.

Temporary child support may be requested in a complaint, counterclaim or in a motion filed by a party.  It is not unusual to see a temporary child support request coupled with a request for past or retroactive child support.  The purpose of temporary child support is to get an amount of support in place pending final resolution of the case. Temporary child support is, in most cases, bases upon application os the North Carolina child support guidelines.   In some situations, the guidelines do not apply and the court will determine temporary child support based upon the incomes and expenses of the parties.  These are often presented in court in the form of financial affidavits.

The Wake County Local Rules have specific requirements to temporary child  support cases tried in Raleigh:

              6.3  Temporary Child Support Hearings. A hearing shall be set and a temporary child support order entered pursuant to N.C.G.S. § 50-32. Only upon the request of an attorney or party shall the assigned FCCC schedule a temporary child support hearing in accordance with these Rules.

  1. (a)  Length of Hearing. Temporary child support hearings shall be limited to 1 hour. Each party will have up to thirty minutes to present his or her case, including direct and cross-examination, opening statements and closing arguments. With written notice to the opposing party at least seven (7) days prior to the scheduled hearing date, parties may request from the Court additional time, which the assigned Judge may allow in his or her discretion.
  2. (b)  Use of Affidavits. Evidence in temporary child support hearings may be by affidavits. An affidavit is a sworn statement of fact, written down, signed, and witnessed by a taker of oaths such as a notary public. Parties wishing to use affirmative affidavits from the parties, accountants, private investigators or other third parties must deliver the affidavits (excluding attorney’s fee affidavits) to the other party by any means reasonably calculated to ensure receipt no later than ten (10) days prior to the scheduled hearing. Rebuttal affidavits, i.e., affidavits that are a direct response to the opposing party’s affirmative affidavits, shall be delivered to the other party by any means reasonably calculated to ensure receipt no later than five (5) days before the scheduled hearing. The Court will not consider affidavits which are not served on the opposing party in accordance with these Rules.
  3. (c)  Temporary Order. The temporary child support order shall be non-prejudicial to both parties. In Guidelines cases, a completed Child Support Worksheet (AOC-CV-627, 628, or 629) shall be attached to the temporary order which is filed with the Clerk of Court.
  4. (d)  Dismissal of Temporary Child Support Claim. If a party asserts a claim for temporary child support, he or she must schedule the claim for hearing so that it is heard within sixty (60) days of the filing of the claim. If the claim is not timely scheduled for hearing, the claim may be involuntarily dismissed without prejudice for failure to comply with these Rules.

 

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Raleigh divorce lawyerScott Allen handles child support, temporary child support and modification of child support in Wake County, North Carolina 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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Past Due Child Support in NC – NCGS 50-13.10

The issue of past due child support creates particular problems for parents who get behind.  The problem is that once a child support payment comes due, the court is generally prohibited from changing that amount later.

In practical terms that means that as soon as events change that cause a peson to consider a motion to modify child support the motion should be filed.  For example, if a payor of child support loses his job, it is in his best interest to immediately file for child support rather than wait because the court may modify the child support back to the time of  the filing of the motion but not before.

The North Carolina statute is found in § 50‑13.10.

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Raleigh divorce lawyerScott Allen handles child support, 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.  

 

Filed Under: Child Support, Family Law Library

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

Procedures in NC Child Support Actions – NCGS § 50‑13.5

 

§ 50‑13.5.  Procedure in actions for custody or support of minor children.

(a)        Procedure. – The procedure in actions for custody and support of minor children shall be as in civil actions, except as provided in this section and in G.S. 50‑19. In this G.S. 50‑13.5 the words “custody and support” shall be deemed to include custody or support, or both.

(b)        Type of Action. – An action brought under the provisions of this section may be maintained as follows:

(1)        As a civil action.

(2)        Repealed by Session Laws 1979, c. 110, s. 12.

(3)        Joined with an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.

(4)        As a cross action in an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.

(5)        By motion in the cause in an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.

(6)        Upon the court’s own motion in an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.

(7)        In any of the foregoing the judge may issue an order requiring that the body of the minor child be brought before him.

(c)        Jurisdiction in Actions or Proceedings for Child Support and Child Custody. –

(1)        The jurisdiction of the courts of this State to enter orders providing for the support of a minor child shall be as in actions or proceedings for the payment of money or the transfer of property.

(2)        The courts of this State shall have jurisdiction to enter orders providing for the custody of a minor child under the provisions of G.S. 50A‑201, 50A‑202, and 50A‑204.

(3)        through (6) Repealed by Session Laws 1979, c. 110, s. 12.

(d)       Service of Process; Notice; Interlocutory Orders. –

(1)        Service of process in civil actions for the custody of minor children shall be as in other civil actions. Motions for support of a minor child in a pending action may be made on 10 days notice to the other parties and compliance with G.S. 50‑13.5(e). Motions for custody of a minor child in a pending action may be made on 10 days notice to the other parties and after compliance with G.S. 50A‑205.

(2)        If the circumstances of the case render it appropriate, upon gaining jurisdiction of the minor child the court may enter orders for the temporary custody and support of the child, pending the service of process or notice as herein provided.

(3)        A temporary order for custody which changes the living arrangements of a child or changes custody shall not be entered ex parte and prior to service of process or notice, unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina courts.

(e)        Notice to Additional Persons in Support Actions and Proceedings; Intervention. –

(1)        The parents of the minor child whose addresses are reasonably ascertainable; any person, agency, organization or institution having actual care, control, or custody of a minor child; and any person, agency, organization or institution required by court order to provide for the support of a minor child, either in whole or in part, not named as parties and served with process in an action or proceeding for the support of such child, shall be given notice by the party raising the issue of support.

(2)        The notice herein required shall be in the manner provided by the Rules of Civil Procedure for the service of notices in actions. Such notice shall advise the person to be notified of the name of the child, the names of the parties to the action or proceeding, the court in which the action or proceeding was instituted, and the date thereof.

(3)        In the discretion of the court, failure of such service of notice shall not affect the validity of any order or judgment entered in such action or proceeding.

(4)        Any person required to be given notice as herein provided may intervene in an action or proceeding for support of a minor child by filing in apt time notice of appearance or other appropriate pleadings.

(f)        Venue. – An action or proceeding in the courts of this State for custody and support of a minor child may be maintained in the county where the child resides or is physically present or in a county where a parent resides, except as hereinafter provided. If an action for annulment, for divorce, either absolute or from bed and board, or for alimony without divorce has been previously instituted in this State, until there has been a final judgment in such case, any action or proceeding for custody and support of the minor children of the marriage shall be joined with such action or be by motion in the cause in such action. If an action or proceeding for the custody and support of a minor child has been instituted and an action for annulment or for divorce, either absolute or from bed and board, or for alimony without divorce is subsequently instituted in the same or another county, the court having jurisdiction of the prior action or proceeding may, in its discretion direct that the action or proceeding for custody and support of a minor child be consolidated with such subsequent action, and in the event consolidation is ordered, shall determine in which court such consolidated action or proceeding shall be heard.

(g)        Custody and Support Irrespective of Parents’ Rights Inter Partes. – Orders for custody and support of minor children may be entered when the matter is before the court as provided by this section, irrespective of the rights of the wife and the husband as between themselves in an action for annulment or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.

(h)        Court Having Jurisdiction. – When a district court having jurisdiction of the matter shall have been established, actions or proceedings for custody and support of minor children shall be heard without a jury by the judge of such district court, and may be heard at any time.

(i)         District Court; Denial of Parental Visitation Right; Written Finding of Fact. – In any case in which an award of child custody is made in a district court, the trial judge, prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.

(j)         Custody and Visitation Rights of Grandparents. – In any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to G.S. 50‑13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate. As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.(1858‑9, c. 53, s. 2; 1871‑2, c. 193, ss. 39, 46; Code, ss. 1292, 1296, 1570, 1662; Rev., ss. 1567, 1570, 1854; 1919, c. 24; C.S., ss. 1664, 1667, 2242; 1921, c. 13; 1923, c. 52; 1939, c. 115; 1941, c. 120; 1943, c. 194; 1949, c. 1010; 1951, c. 893, s. 3; 1953, cc. 813, 925; 1955, cc. 814, 1189; 1957, c. 545; 1965, c. 310, s. 2; 1967, c. 1153, s. 2; 1971, c. 1185, s. 24; 1973, c. 751; 1979, c. 110, s. 12; c. 563; c. 709, s. 3; 1981, c. 735, s. 3; 1983, c. 587; 1985, c. 575, s. 4; 1987 (Reg. Sess., 1988), c. 893, s. 3.1; 1999‑223, ss. 11, 12.)

 

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Raleigh divorce attorney Scott Allen handles child support, 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.  

Filed Under: Child Support Tagged With:

Taxes and Your Divorce – North Carolina Child Support

Unlike alimony, child support is not taxable to the recipient and it is not deductible by the person paying it.

There are, however, many tax issues related to child support that you need to consider whether you have to go to court to resolve child support or if it is settled by agreement.  Here are some common questions I get asked about child support and taxes.

Q: Who gets to claim the child on taxes?

A: The IRS says that the parent who has custody for more than half the year gets to claim a child.

Q: Since I pay child support, shouldn’t I get to claim the child on my taxes?

A: No. The North Carolina child support guideliens are drafted in a way that the amount of child support is calculated on the assumption that the child support recipient claims the child on his or her taxes.

Q: If I pay child support, can I ask the court to allow me to claim a child on my taxes?

A: Yes.  In some circumstances the district court judge in North Carolina may allow the payor of child support to claim the child on his or her taxes.

Q:  Does the recipient of child support have to show it as income on her taxes?

A:  No.

Q: If I pay child support, may I deduct it?

A: No.

Q: What if my spouse or ex-spouse and I both claim the children on our separate tax returns?

A: One or both of you will have a problem with the IRS.

Q: What if we have an agreement that allows one parent to claim the children?

A: That is acceptable, but the spouse giving up the right to claim a child may need to sign an IRS form.  The form is IRS form number 8332.

 

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Raleigh divorce attorney  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.  

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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.

Filed Under: Alimony, Child Custody, Child Support, Property Distribution Tagged With: , , , , ,

North Carolina Child Support

The law in North Carolina on child support presumes that parents have a financial responsibility towards their children.   This such an important issue to the states and the federal government, that child support agencies have been established, including in North Carolina, that seek to establish parental child support obligations and enforce those obligations once established.

Into the 1980′s, child support was calculated in every county in North Carolina… Wake County, Johnston County, Durham County… and so on, on a case-by-case basis.  In other words, if the parents could not work out an agreed upon level of child support, a judge would hear testimony and take evidence about the incomes of the parents and the needs of the children and enter an order.

Some would say the case-by-case analysis by the courts created very different results case-to-case, judge-to-judge, and county-to-county.  No doubt, it did.

Also, once these orders were entered, enforcement became increasingly difficult in our increasingly mobile country.  Imagine the prohibitive expense to a single parent with a court order for child support who might be chasing payment from state to state as the ex-spouse moved between jobs.

The federal government got involved and essentially, with the power of its federal purse strings, compelled the states to establish support establishment and enforcement mechanisms.  Now, in Wake County for example, we have a child support enforcement agency in downtown Raleigh.  Even though there have been threats of cuts to these programs in the past, they are going strong.

In addition to establishment and enforcement agencies, there was a push to streamline the calculation of child support…. enter the North Carolina Child Support Guidelines.

In North Carolina, the Conference of Chief District Court Judges was charged with promulgating guidelines.  Like many other states, the Conference seized upon an income shares model, assessed the numbers, and came up with a formulae to calculate child support based on a grid of presumptive needs based on income levels and the number of children and the adjustments based on such factors as the difference in income between the parents, the cost of child care and health insurance.  Other adjustment factors were added in such as extraordinary expenses and to cap it off judges were given flexibility to vary from the guideline-suggested child support if fairness so dictated.

So here we are.  Since the late 1980′s we have gone through multiple updates on the guidelines as well as a few statutory revisions and many cases interpreting the law.  Additionally, there are online calculators for child support.

Family law attorney Scott Allen handles 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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