Emergency Custody in North Carolina – The Basics

emergency child custody Emergency Custody is an extraordinary relief available in some child custody cases.  For an in-depth article, go here, if you need immediate assistance call our firm and we will consult with you and evaluate if an emergency exists that releif can be obtained from a court on.

When I get asked about emergency custody I generally focus on two issues: (1) harm and danger to the child and (2) the risk of a child being taken from North Carolina to avoid this state’s child custody jurisdiction.  In applying for emergency relief from a judge it is typically done “ex parte” where the other side is not present in court.

“Ex parte” means that only one side is telling the court its version of facts and events since the other side has not yet been given the opportunity to address the court.  The problem for judges in these situations is that  since the other side has not had an opportunity to be heard, they are hesitant to enter them unless circumstances clearly warrant it.  Therefore, the court must review a temporary emergency custody order within ten days, at which time the other side has the opportunity to present his or her own evidence. After the court has heard the evidence from each side, the order will be continued (kept in force), modified, or terminated (dissolved).

 

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Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of custody litigation and settlement.  He can be reached at 919.863.4183.

 

 

Keeping Your Children Out of the Conflict Between Parents

Child Custody in NCMental health professionals, judges, and lawyers, all agree that it is best to work to minimize the impact of divorce and separation on children.   Parents should do their best to keep the children out of the conflict.

Here are some tips that will help.

 

  • Tell and then reinforce to your children that they are not the cause of the separation or divorce. Keep the explanations simple, such as “your father and I can no longer live together happily. You need to know that this has nothing to do with you. We both love you very much and nothing ever will change that.”
  • Be extremely careful when talking about the other parent and any litigation.   Your children should not be aware of the details of  legal documents, depositions, and proceedings, and they should not know it if you can not stand their other parent.
  • Allow the children to love the other parent parents and reinforce that the other parent loves them.
  • Create an environment where the children can be free to love both parents.
  • Do not use the children as messengers between parents.
  • Do not say mean, hurtful, or disparaging remarks about the other parent in front of the children.
  • Think carefully before introducing your children to someone you are dating.
  • Do the right thing even if that is not what you want to do.  Consider that all your acts may be looked at by a judge later on.

 

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

What is Important to You?

What is Important to You?I ask this question all the time of my clients:  “What is important to you?”  After all, it is the client’s situation, the client’s money, and the client’s future wellbeing at stake.

If I don’t know the answer to that single question, I cannot help my client.  Why?  Because if I don’t know what is important to my client, i cannot begin to help them achieve their goals.  Make sure your attorney asks you what is important to you.

  • Do you worry about your financial security?
  • Are you worried about the welfare of your children?
  • Are you worried about maintaining a working relationship with your spouse after the divorce?

These are just examples.  One or more of these things, or other things, might be important to you.   Tell your attorney what is important to you.

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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.

 

Representing Yourself in Wake Family Court: Part 4

When Things go Wrong in Your Raleigh DivorceThis is the fourth in a series of articles on going pro se in Wake County Family Court in Raleigh, NC.   In Part 1 I gave a general outline.  In Part 2, we focused on the Wake County Local Rules.  In Part 3, I  covered basic courtroom decorum and procedures.   Today, in Part 4, I want to talk about sources of law.  In other words, where you should look to find the law if you are representing yourself.

North Carolina originally adopted its law from the common law of England.   Much of our law still has principles that can be traced back to our adoption of the common law.  In the family law context, a good example of that is the law related to alienation of affections and criminal conversation.  Later on, efforts were made to codify the law.  That means parts of the common law, as well as new laws that were needed in a society of increasing complexity, were put into statutes.  These are now known as the North Carolina General Statutes.  They can be found online in several places, one of which is at the source of the statutes, the North Carolina General Assembly.

You might wonder about federal law… that is the law of the United States… and the impact on family law.  For reasons that are historical and constitutional the law of divorce, child support, child custody, alimony and equitable distribution are matters os state, not federal law.  There are some interesting examples of some overlap and impact of federal law and Supreme Court decisions on state law, but in most situations and most cases, the impact is minimal.

Apart from statutory law, there is a body of law from the North Carolina appellate courts that continue to explain, define, and interpret the common law and the statutory law.   There is a constant stream of appellate decisions that impact the law.  As an example of how complicated this is, take a few minutes to read this example case from 2012.    There are many cases each year where the appellate courts touch on issue of family law.   As a pro se litigant it is extremely difficult to learn all that can be learned about an area of family law that you are involved in.  However, if you want to do as well as you can, you need to educate yourself.

In addition to the substantive law in an area, there are also laws related to procedure and evidence.  These are known, respectively  as the North Carolina Rules of Civil Procedure and the North Carolina Rules of Evidence.  The Rules of Civil Procedure, for example, cover such things as depositions.  The rules of evidence deal with what is proper evidence in court, how it is submitted, hearsay, etc.

 

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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.

 

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.