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.

Filed Under: Family Law Tagged With: client, divorces, family law, north carolina divorce

Representing Yourself in Wake Family Court: Part 4

This 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.

Filed Under: Wake County Family Court Tagged With: appeal, common law, English Law, family court, family law, Federal Law, Supreme Court, The Common Law, wake county family court

When Can a Child Decide Custody?

When 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.

Filed Under: Child Custody Tagged With: best interests, child custody, children, custody, custody cases, Divorce, family law, noncustodial parent, parenting

No Child Support, No Visitation?

Does 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.

Filed Under: Child Support Tagged With: child, child custody, child support, custody, family law, nc laws, noncustodial parent, payments, scott allen

Divorce – Reduce Its Impact on Children

Divorce – 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.

Filed Under: Child Custody Tagged With: child custody, children, Divorce, family, family law, parenting, sad

Temporary Child Support in Wake County, North Carolina

Temporary 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.

(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.

(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.

(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.

(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.

Filed Under: Child Support Tagged With: child support, child support order, childhood, court, determination, Divorce, family, family law, finals, human development, local rule, marriage, north carolina, North Carolina child support, parenting, social issues, temporary child support, wake, wake county

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.

Filed Under: Child Custody Tagged With: affiant, affidavit, cases, child custody, child support, Divorce, evidence law, family law, family law cases, financial affidavit, frequently, legal documents, motion, north carolina, north carolina child support guidelines, north carolina family law, sworn declaration

The Child Custody Evaluation in Wake County, North Carolina

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.

Filed Under: Child Custody, Raleigh Tagged With: child custody, child custody cases, child custody evaluation, custody evaluation, family law, marriage, north carolina, parental alienation syndrome, parenting

The Case for Calm: The Stress of Divorce

Divorce is stressful. I know this and I have witnessed the impact of divorce and separation. I have seen hundreds of clients over the years and one thing is clear: everyone responds to divorce differently.

How you respond is important, and I’ll get to that later on, but let me start by outlining some of the symptoms of stress that I have seen:

Inability to focus.
Sleep problems.
Anxiety.
Anger.
Depression.
Not eating.
Overeating.
Substance abuse.

Anxiety, anger, and depression are, by far, the biggest symptoms I see in my practice. From many conversations with other divorce lawyers, I know we all see the same thing. These signs of stress are a daily part of my practice. They are usual and to be expected as part of any divorce.

I know that life is stressful enough already. When you add the divorce process on top of job issues and other family issues, it is easy to become overwhelmed. However, it is important that stress be addressed before the symptoms have an impact on your case.

Symptoms of stress can impact a divorce case in many ways. Here is a short list:

Inability to follow through with necessary documents and preparation. A client that can’t focus can help in his or her own case.
Inability to appropriately communicate with the other party. This is a big problem in custody cases. A client who is stressed out and angry will often take the anger out on his or her spouse.

How to deal with this stress? There are many ways.

Counseling. In counseling the professional will suggest many ways to deal with stress. For example, the counselor may help the patient put the divorce in perspective or frame the problem in a way that helps the spouse deal with it in a more productive way. A qualified counselor may also give advice about avoiding stressful situations and recognizing other ways to deal with the stress of divorce.
Physical exercise. I know that this can help the mind and body deal with stress.
Self-help. There are books on how to deal with stress, web sites, and other resources. Use them.

I don’t think there is any way to eliminate stress from a divorce. However, picking the right lawyer can make the process less stressful than it might otherwise be. Interview several lawyers. Listen to the legal advice and get a sense of how you think you will get along with each.

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Raleigh divorce lawyer Scott Allen handles alimony, child support, equitable distribution, 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: Divorce Tagged With: acute stress reaction, anxiety, calm, case, dealing with stress, Divorce, divorce cases, divorce lawyers, divorce process, effectively, family law, human interest, implications of divorce, major depressive disorder, north carolina, social issues, stress, stressful, substance abuse, sympathetic nervous system, symptoms

Emergency Child Custody in North Carolina

The 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.

Filed Under: Child Custody Tagged With: best interests, child custody, child endangerment, children, court, danger, Divorce, emergency, emergency child custody, emergency custody, ex parte, family law, fathers' rights, marriage, north carolina, parenting, request, social issues, uniform child abduction prevention act, uniform child custody jurisdiction and enforcement act

Postseparation Support in North Carolina

Postseparation support is a ration of the 1995 statutory amendments that overhauled the alimony and temporary alimony law in North Carolina. Postseparation support is temporary alimony. It is designed as a stop-gap measure to help dependent spouses get support after separation and until final alimony is awarded or denied.

Fault usually plays little to no role in the postseparation support hearing. Frequently the postseparation support award is based primarily on financial affidavits that are filled out by the parties prior to the hearing. In Wake County, North Carolina, postseparation support hearings are time-limited by the court.

§ 50‑16.2A. Postseparation support.

(a)        In an action brought pursuant to Chapter 50 of the General Statutes, either party may move for postseparation support. The verified pleading, verified motion, or affidavit of the moving party shall set forth the factual basis for the relief requested.

(b)        In ordering postseparation support, the court shall base its award on the financial needs of the parties, considering the parties’ accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income‑earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party’s respective legal obligations to support any other persons.

(c)        Except when subsection (d) of this section applies, a dependent spouse is entitled to an award of postseparation support if, based on consideration of the factors specified in subsection (b) of this section, the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay.

(d)       At a hearing on postseparation support, the judge shall consider marital misconduct by the dependent spouse occurring prior to or on the date of separation in deciding whether to award postseparation support and in deciding the amount of postseparation support. When the judge considers these acts by the dependent spouse, the judge shall also consider any marital misconduct by the supporting spouse in deciding whether to award postseparation support and in deciding the amount of postseparation support.

(e)        Nothing herein shall prevent a court from considering incidents of post date‑of‑separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation. (1995, c. 319, s. 2.)

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Raleigh divorce lawyer Scott Allen handles postseparation support, alimony, and all other types of family law matters.

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

Filed Under: Alimony, Family Law Library Tagged With: Alimony, conflict of laws, dependents, Divorce, divorce in the united states, divorce process, ensure, family, family law, financial, get, law, marriage, north carolina, raleigh divorce, raleigh divorce lawyer, spouses, support, temporaries, temporary alimony, wake county

Child Support Forfeiture of License – NCGS 50-13.2

Failure to pay child support can have serious consequences. In addition to the contempt powers of the court as found in NCGS 5A, the court may revoke or suspend licenses. This includes driver, hunting, and professional licensing, among others.

§ 50‑13.12. Forfeiture of licensing privileges for failure to pay child support or for failure to comply with subpoena issued pursuant to child support or paternity establishment proceedings.

(a)        As used in this section, the term:

(1)        “Licensing board” means a department, division, agency, officer, board, or other unit of state government that issues hunting, fishing, trapping, drivers, or occupational licenses or licensing privileges.

(2)        “Licensing privilege” means the privilege of an individual to be authorized to engage in an activity as evidenced by hunting, fishing, or trapping licenses, regular and commercial drivers licenses, and occupational, professional, and business licenses.

(3)        “Obligee” means the individual or agency to whom a duty of support is owed or the individual’s legal representative.

(4)        “Obligor” means the individual who owes a duty to make child support payments under a court order.

(5)        “Occupational license” means a license, certificate, permit, registration, or any other authorization issued by a licensing board that allows an obligor to engage in an occupation or profession.

(b)        Upon a finding by the district court judge that the obligor is willfully delinquent in child support payments equal to at least one month’s child support, or upon a finding that a person has willfully failed to comply with a subpoena issued pursuant to a child support or paternity establishment proceeding, and upon findings as to any specific licensing privileges held by the obligor or held by the person subject to the subpoena, the court may revoke some or all of such privileges until the obligor shall have paid the delinquent amount in full, or, as applicable, until the person subject to the subpoena has complied with the subpoena. The court may stay any such revocation pertaining to the obligor upon conditions requiring the obligor to make full payment of the delinquency over time. Any such stay shall further be conditioned upon the obligor’s maintenance of current child support. The court may stay the revocation pertaining to the person subject to the subpoena upon a finding that the person has complied with or is no longer subject to the subpoena. Upon an order revoking such privileges of an obligor that does not stay the revocation, the clerk of superior court shall notify the appropriate licensing board that the obligor is delinquent in child support payments and that the obligor’s licensing privileges are revoked until such time as the licensing board receives proof of certification by the clerk that the obligor is no longer delinquent in child support payments. Upon an order revoking such privileges of a person subject to the subpoena that does not stay the revocation, the clerk of superior court shall notify the appropriate licensing board that the person has failed to comply with the subpoena issued pursuant to a child support or paternity establishment proceeding and that the person’s licensing privileges are revoked until such time as the licensing board receives proof of certification by the clerk that the person is in compliance with or no longer subject to the subpoena.

(c)        An obligor may file a request with the clerk of superior court for certification that the obligor is no longer delinquent in child support payments upon submission of proof satisfactory to the clerk that the obligor has paid the delinquent amount in full. A person whose licensing privileges have been revoked under subsection (b) of this section because of a willful failure to comply with a subpoena may file a request with the clerk of superior court for certification that the person has met the requirements of or is no longer subject to the subpoena. The clerk shall provide a form to be used for a request for certification. If the clerk finds that the obligor has met the requirements for reinstatement under this subsection, then the clerk shall certify that the obligor is no longer delinquent and shall provide a copy of the certification to the obligor. Upon request of the obligor, the clerk shall mail a copy of the certification to the appropriate licensing board. If the clerk finds that the person whose licensing privileges have been revoked under subsection (b) of this section for failure to comply with a subpoena has complied with or is no longer subject to the subpoena, then the clerk shall certify that the person has met the requirements of or is no longer subject to the subpoena and shall provide a copy of the certification to the person. Upon request of the person, the clerk shall mail a copy of the certification to the appropriate licensing board.

(d)       If licensing privileges are revoked under this section, the obligor may petition the district court for a reinstatement of such privileges. The court may order the privileges reinstated conditioned upon full payment of the delinquency over time. Any order allowing license reinstatement shall additionally require the obligor’s maintenance of current child support. If the licensing privileges of a person other than the obligor are revoked under this section for failure to comply with a subpoena, the person may petition the district court for reinstatement of the privileges. The court may order the privileges reinstated if the person has complied with or is no longer subject to the subpoena that was the basis for revocation. Upon reinstatement under this subsection, the clerk of superior court shall certify that the obligor is no longer delinquent and provide a copy of the certification to the obligor. Upon request of the obligor, the clerk shall mail a copy of the certification to the appropriate licensing board. Upon reinstatement of the person whose licensing privileges were revoked based on failure to comply with a subpoena, the clerk of superior court shall certify that the person has complied with or is no longer subject to the subpoena. Upon request of the person whose licensing privileges are reinstated, the clerk shall mail a copy of the certification to the appropriate licensing board.

(e)        An obligor or other person whose licensing privileges are reinstated under this section may provide a copy of the certification set forth in either subsection (c) or (d) to each licensing agency to which the obligor or other person applies for reinstatement of licensing privileges. Upon request of the obligor or other person, the clerk shall mail a copy of the certification to the appropriate licensing board. Upon receipt of a copy of the certification, the licensing board shall reinstate the license.

(f)        Upon receipt of notification by the clerk that an obligor’s or other person’s licensing privileges are revoked pursuant to this section, the board shall note the revocation on its records and take all necessary steps to implement and enforce the revocation. These steps shall not include the board’s independent revocation process pursuant to Chapter 150B of the General Statutes, the Administrative Procedure Act, which process is replaced by the court process prescribed by this section. The revocation pertaining to an obligor shall remain in full force and effect until the board receives certification under this section that the obligor is no longer delinquent in child support payments. The revocation pertaining to the person whose licensing privileges were revoked on the basis of failure to comply with a subpoena shall remain in full force and effect until the board receives certification of reinstatement under subsection (d) of this section. (1995, c. 538, ss. 1, 1.1; 1997‑433, s. 5.3; 1998‑17, s. 1.)

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Raleigh divorce lawyer Scott Allen handles modification of child support, 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: Family Law Library Tagged With: assignment, business license, child support, child support in the united states, child support payment, childhood, contract law, family law, forfeiture, license, licensing board, licensure, ncgs, north carolina, occupational license, parenting, pay child support, professional license, rights, subpoena, suspended license

Health Insurance and Medical Support – NCGS 50-13.11

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. A frequent component of child support is health insurance.

North Carolina law allows the district court judge in a child support case to order health insurance coverage when ”health insurance is available at a reasonable cost.” The court may also require parent to maintain dental insurance coverage for a child.

The statute provides:

§ 50‑13.11. Orders and agreements regarding medical support and health insurance coverage for minor children.

(a)        The court may order a parent of a minor child or other responsible party to provide medical support for the child, or the parties may enter into a written agreement regarding medical support for the child. An order or agreement for medical support for the child may require one or both parties to pay the medical, hospital, dental, or other health care related expenses.

(a1)      The court shall order the parent of a minor child or other responsible party to maintain health insurance for the benefit of the child when health insurance is available at a reasonable cost. If health insurance is not presently available at a reasonable cost, the court shall order the parent of a minor child or other responsible party to maintain health insurance for the benefit of the child when health insurance becomes available at a reasonable cost. As used in this subsection, health insurance is considered reasonable in cost if it is employment related or other group health insurance, regardless of service delivery mechanism. The court may require one or both parties to maintain dental insurance.

(b)        The party ordered or under agreement to provide health insurance shall provide written notice of any change in the applicable insurance coverage to the other party.

(c)        The employer or insurer of the party required to provide health, hospital, and dental insurance shall release to the other party, upon written request, any information on a minor child’s insurance coverage that the employer or insurer may release to the party required to provide health, hospital, and dental insurance.

(d)       When a court order or agreement for health insurance is in effect, the signature of either party shall be valid authorization to the insurer to process an insurance claim on behalf of a minor child.

(e)        If the party who is required to provide health insurance fails to maintain the insurance coverage for the minor child, the party shall be liable for any health, hospital, or dental expenses incurred from the date of the court order or agreement that would have been covered by insurance if it had been in force.

(f)        When a noncustodial parent ordered to provide health insurance changes employment and health insurance coverage is available through the new employer, the obligee shall notify the new employer of the noncustodial parent’s obligation to provide health insurance for the child. Upon receipt of notice from the obligee, the new employer shall enroll the child in the employer’s health insurance plan.

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Raleigh divorce lawyer Scott Allen handles child support 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: Family Law Library Tagged With: child health insurance, child support, children health insurance, dental insurance, dental insurance coverage, Divorce, family, family law, health, health care, health care in the united states, health insurance, health insurance coverage, human development, insurance, insurance coverage, labor, marriage, noncustodial parent, parenting, social issues, support, types of insurance

How Child Support is Enforced. NCGS 50-13.9

§ 50‑13.9. Procedure to insure payment of child support.

(a) Upon its own motion or upon motion of either party, the court may order at any time that support payments be made to the State Child Support Collection and Disbursement Unit for remittance to the party entitled to receive the payments. For child support orders initially entered on or after January 1, 1994, the immediate income withholding provisions of G.S. 110‑136.5(c1) apply.

(b) After entry of an order by the court under subsection (a) of this section, the State Child Support Collection and Disbursement Unit shall transmit child support payments that are made to it to the custodial parent or other party entitled to receive them, unless a court order requires otherwise.

(b1) In a IV‑D case:

(1) The designated child support enforcement agency shall have the sole responsibility and authority for monitoring the obligor’s compliance with all child support orders in the case and for initiating any enforcement procedures that it considers appropriate.

(2) The clerk of court shall maintain all official records in the case.

(3) The designated child support enforcement agency shall maintain any other records needed to monitor the obligor’s compliance with or to enforce the child support orders in the case, including records showing the amount of each payment of child support received from or on behalf of the obligor, along with the dates on which each payment was received. In any action establishing, enforcing, or modifying a child support order, the payment records maintained by the designated child support agency shall be admissible evidence, and the court shall permit the designated representative to authenticate those records.

(b2) In a non‑IV‑D case:

(1) Repealed by Session Laws 2005, ch. 389, s. 1.

(2) The clerk of court shall maintain all official records and all case data concerning child support matters previously enforced by the clerk of court.

(3) Repealed by Session Laws 2005, ch. 389, s. 1.

(c) In a IV‑D case, the parties affected by the order shall inform the designated child support enforcement agency of any change of address or other condition that may affect the administration of the order. The court may provide in the order that a party failing to inform the court or, as appropriate, the designated child support enforcement agency, of a change of address within a reasonable period of time may be held in civil contempt.

(d) Upon affidavit of an obligee, the clerk or a district court judge may order the obligor to appear and show cause why the obligor should not be subjected to income withholding or adjudged in contempt of court, or both. The order shall require the obligor to appear and show cause why the obligor should not be subjected to income withholding or adjudged in contempt of court, or both, and shall order the obligor to bring to the hearing records and information relating to the obligor’s employment, the obligor’s licensing privileges, and the amount and sources of the obligor’s disposable income. The order shall state:

(1) That the obligor is under a court order to provide child support, the name of each child for whose benefit support is due, and information sufficient to identify the order;

(2) That the obligor is delinquent and the amount of overdue support;

(2a) That the court may order the revocation of some or all of the obligor’s licensing privileges if the obligor is delinquent in an amount equal to the support due for one month;

(3) That the court may order income withholding if the obligor is delinquent in an amount equal to the support due for one month;

(4) That income withholding, if implemented, will apply to the obligor’s current payors and all subsequent payors and will be continued until terminated pursuant to G.S. 110‑136.10;

(5) That failure to bring to the hearing records and information relating to his employment and the amount and sources of his disposable income will be grounds for contempt;

(6) That if income withholding is not an available or appropriate remedy, the court may determine whether the obligor is in contempt or whether any other enforcement remedy is appropriate.

The order may be signed by the clerk or a district court judge, and shall be served on the obligor pursuant to G.S. 1A‑1, Rule 4, Rules of Civil Procedure. On motion of the person to whom support is owed in a non‑IV‑D case, with the approval of the district court judge, if the district court judge finds it is in the best interest of the child, no order shall be issued.

(e) Repealed by Session Laws 2005, ch. 389, s. 1.

(f) Repealed by Session Laws 2005, ch. 389, s. 1.

(g) Nothing in this section shall preclude the independent initiation by a party of proceedings for civil contempt or for income withholding. ( 1983, c. 677, s. 1; 1985 (Reg. Sess., 1986), c. 949, ss. 3‑6; 1989, c. 479; 1993, c. 517, s. 6; c. 553, s. 67.1; 1995, c. 444, s. 1; c. 538, s. 1.2; 1997‑443, s. 11A.118(a); 1999‑293, ss. 11‑14; 2001‑237, s. 7; 2005‑389, s. 1; 2006‑264, s. 97.)

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Raleigh divorce lawyer 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: Family Law Library Tagged With: assignment, child support, child support agency, child support enforcement agency, child support in the united states, child support order, child support payment, childhood, children, contempt of court, court, Divorce, enforce, family law, marriage, ncgs, north carolina, parenting, social issues, state child support, uniform reciprocal enforcement of support act

Child Support in NC – NCGS § 50‑13.4. Action for support of minor child.

§ 50‑13.4. Action for support of minor child.

(a) Any parent, or any person, agency, organization or institution having custody of a minor child, or bringing an action or proceeding for the custody of such child, or a minor child by his guardian may institute an action for the support of such child as hereinafter provided.

(b) In the absence of pleading and proof that the circumstances otherwise warrant, the father and mother shall be primarily liable for the support of a minor child. In the absence of pleading and proof that the circumstances otherwise warrant, parents of a minor, unemancipated child who is the custodial or noncustodial parent of a child shall share this primary liability for their grandchild’s support with the minor parent, the court determining the proper share, until the minor parent reaches the age of 18 or becomes emancipated. If both the parents of the child requiring support were unemancipated minors at the time of the child’s conception, the parents of both minor parents share primary liability for their grandchild’s support until both minor parents reach the age of 18 or become emancipated. If only one parent of the child requiring support was an unemancipated minor at the time of the child’s conception, the parents of both parents are liable for any arrearages in child support owed by the adult or emancipated parent until the other parent reaches the age of 18 or becomes emancipated. In the absence of pleading and proof that the circumstances otherwise warrant, any other person, agency, organization or institution standing in loco parentis shall be secondarily liable for such support. Such other circumstances may include, but shall not be limited to, the relative ability of all the above‑mentioned parties to provide support or the inability of one or more of them to provide support, and the needs and estate of the child. The judge may enter an order requiring any one or more of the above‑mentioned parties to provide for the support of the child as may be appropriate in the particular case, and if appropriate the court may authorize the application of any separate estate of the child to his support. However, the judge may not order support to be paid by a person who is not the child’s parent or an agency, organization or institution standing in loco parentis absent evidence and a finding that such person, agency, organization or institution has voluntarily assumed the obligation of support in writing. The preceding sentence shall not be construed to prevent any court from ordering the support of a child by an agency of the State or county which agency may be responsible under law for such support.

The judge may order responsible parents in a IV‑D establishment case to perform a job search, if the responsible parent is not incapacitated. This includes IV‑D cases in which the responsible parent is a noncustodial mother or a noncustodial father whose affidavit of parentage has been filed with the court or when paternity is not at issue for the child. The court may further order the responsible parent to participate in work activities, as defined in 42 U.S.C. § 607, as the court deems appropriate.

(c) Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. Payments ordered for the support of a minor child shall be on a monthly basis, due and payable on the first day of each month. The requirement that orders be established on a monthly basis does not affect the availability of garnishment of disposable earnings based on an obligor’s pay period.

The court shall determine the amount of child support payments by applying the presumptive guidelines established pursuant to subsection (c1) of this section. However, upon request of any party, the Court shall hear evidence, and from the evidence, find the facts relating to the reasonable needs of the child for support and the relative ability of each parent to provide support. If, after considering the evidence, the Court finds by the greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate the Court may vary from the guidelines. If the court orders an amount other than the amount determined by application of the presumptive guidelines, the court shall make findings of fact as to the criteria that justify varying from the guidelines and the basis for the amount ordered.

Payments ordered for the support of a child shall terminate when the child reaches the age of 18 except:

(1) If the child is otherwise emancipated, payments shall terminate at that time;

(2) If the child is still in primary or secondary school when the child reaches age 18, support payments shall continue until the child graduates, otherwise ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first, unless the court in its discretion orders that payments cease at age 18 or prior to high school graduation.

In the case of graduation, or attaining age 20, payments shall terminate without order by the court, subject to the right of the party receiving support to show, upon motion and with notice to the opposing party, that the child has not graduated or attained the age of 20.

If an arrearage for child support or fees due exists at the time that a child support obligation terminates, payments shall continue in the same total amount that was due under the terms of the previous court order or income withholding in effect at the time of the support obligation. The total amount of these payments is to be applied to the arrearage until all arrearages and fees are satisfied or until further order of the court.

(c1) Effective July 1, 1990, the Conference of Chief District Judges shall prescribe uniform statewide presumptive guidelines for the computation of child support obligations of each parent as provided in Chapter 50 or elsewhere in the General Statutes and shall develop criteria for determining when, in a particular case, application of the guidelines would be unjust or inappropriate. Prior to May 1, 1990 these guidelines and criteria shall be reported to the General Assembly by the Administrative Office of the Courts by delivering copies to the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The purpose of the guidelines and criteria shall be to ensure that payments ordered for the support of a minor child are in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. The guidelines shall include a procedure for setting child support, if any, in a joint or shared custody arrangement which shall reflect the other statutory requirements herein.

Periodically, but at least once every four years, the Conference of Chief District Judges shall review the guidelines to determine whether their application results in appropriate child support award amounts. The Conference may modify the guidelines accordingly. The Conference shall give the Department of Health and Human Services, the Administrative Office of the Courts, and the general public an opportunity to provide the Conference with information relevant to the development and review of the guidelines. Any modifications of the guidelines or criteria shall be reported to the General Assembly by the Administrative Office of the Courts before they become effective by delivering copies to the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The guidelines, when adopted or modified, shall be provided to the Department of Health and Human Services and the Administrative Office of the Courts, which shall disseminate them to the public through local IV‑D offices, clerks of court, and the media.

Until July 1, 1990, the advisory guidelines adopted by the Conference of Chief District Judges pursuant to this subsection as formerly written shall operate as presumptive guidelines and the factors adopted by the Conference of Chief District Judges pursuant to this subsection as formerly written shall constitute criteria for varying from the amount of support determined by the guidelines.

(d) In non‑IV‑D cases, payments for the support of a minor child shall be ordered to be paid to the person having custody of the child or any other proper person, agency, organization or institution, or to the State Child Support Collection and Disbursement Unit, for the benefit of the child. In IV‑D cases, payments for the support of a minor child shall be ordered to be paid to the State Child Support Collection and Disbursement Unit for the benefit of the child.

(d1) For child support orders initially entered on or after January 1, 1994, the immediate income withholding provisions of G.S. 110‑136.5(c1) shall apply.

(e) Payment for the support of a minor child shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property of any interest therein, or a security interest in or possession of real property, as the court may order. The court may order the transfer of title to real property solely owned by the obligor in payment of arrearages of child support so long as the net value of the interest in the property being transferred does not exceed the amount of the arrearage being satisfied. In every case in which payment for the support of a minor child is ordered and alimony or postseparation support is also ordered, the order shall separately state and identify each allowance.

(e1) In IV‑D cases, the order for child support shall provide that the clerk shall transfer the case to another jurisdiction in this State if the IV‑D agency requests the transfer on the basis that the obligor, the custodian of the child, and the child do not reside in the jurisdiction in which the order was issued. The IV‑D agency shall provide notice of the transfer to the obligor by delivery of written notice in accordance with the notice requirements of Chapter 1A‑1, Rule 5(b) of the Rules of Civil Procedure. The clerk shall transfer the case to the jurisdiction requested by the IV‑D agency, which shall be a jurisdiction in which the obligor, the custodian of the child, or the child resides. Nothing in this subsection shall be construed to prevent a party from contesting the transfer.

(f) Remedies for enforcement of support of minor children shall be available as herein provided.

(1) The court may require the person ordered to make payments for the support of a minor child to secure the same by means of a bond, mortgage or deed of trust, or any other means ordinarily used to secure an obligation to pay money or transfer property, or by requiring the execution of an assignment of wages, salary or other income due or to become due.

(2) If the court requires the transfer of real or personal property or an interest therein as provided in subsection (e) as a part of an order for payment of support for a minor child, or for the securing thereof, the court may also enter an order which shall transfer title as provided in G.S. 1A‑1, Rule 70 and G.S. 1‑228.

(3) The remedy of arrest and bail, as provided in Article 34 of Chapter 1 of the General Statutes, shall be available in actions for child‑support payments as in other cases.

(4) The remedies of attachment and garnishment, as provided in Article 35 of Chapter 1 of the General Statutes, shall be available in an action for child‑support payments as in other cases, and for such purposes the child or person bringing an action for child support shall be deemed a creditor of the defendant. Additionally, in accordance with the provisions of G.S. 110‑136, a continuing wage garnishment proceeding for wages due or to become due may be instituted by motion in the original child support proceeding or by independent action through the filing of a petition.

(5) The remedy of injunction, as provided in Article 37 of Chapter 1 of the General Statutes and G.S. 1A‑1, Rule 65, shall be available in actions for child support as in other cases.

(6) Receivers, as provided in Article 38 of Chapter 1 of the General Statutes, may be appointed in action for child support as in other cases.

(7) A minor child or other person for whose benefit an order for the payment of child support has been entered shall be a creditor within the meaning of Article 3A of Chapter 39 of the General Statutes pertaining to fraudulent conveyances.

(8) Except as provided in Article 15 of Chapter 44 of the General Statutes, a judgment for child support shall not be a lien against real property unless the judgment expressly so provides, sets out the amount of the lien in a sum certain, and adequately describes the real property affected; but past due periodic payments may by motion in the cause or by a separate action be reduced to judgment which shall be a lien as other judgments and may include provisions for periodic payments.

(9) An order for the periodic payments of child support or a child support judgment that provides for periodic payments is enforceable by proceedings for civil contempt, and disobedience may be punished by proceedings for criminal contempt, as provided in Chapter 5A of the General Statutes.

Notwithstanding the provisions of G.S. 1‑294, an order for the payment of child support 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 support until the appeal is decided, if justice requires.

(10) The remedies provided by Chapter 1 of the General Statutes, Article 28, Execution; Article 29B, Execution Sales; and Article 31, Supplemental Proceedings, shall be available for the enforcement of judgments for child support as in other cases, but amounts so payable shall not constitute a debt as to which property is exempt from execution as provided in Article 16 of Chapter 1C of the General Statutes.

(11) The specific enumeration of remedies in this section shall not constitute a bar to remedies otherwise available.

(g) An individual who brings an action or motion in the cause for the support of a minor child, and the individual who defends the action, shall provide to the clerk of the court in which the action is brought or the order is issued, the individual’s social security number.

(h) Child support orders initially entered or modified on and after October 1, 1998, shall contain the name of each of the parties, the date of birth of each party, and the court docket number. The Administrative Office of the Courts shall transmit to the Department of Health and Human Services, Child Support Enforcement Program, on a timely basis, the information required to be included on orders under this subsection and the social security number of each party as required under subsection (g) of this section. (1967, c. 1153, s. 2; 1969, c. 895, s. 17; 1975, c. 814; 1977, c. 711, s. 26; 1979, c. 386, s. 10; 1981, c. 472; c. 613, ss. 1, 3; 1983, c. 54; c. 530, s. 1; 1985, c. 689, s. 17; 1985 (Reg. Sess., 1986), c. 1016; 1989, c. 529, ss. 1, 2; 1989 (Reg. Sess., 1990), c. 1067, s. 2; 1993, c. 335, s. 1; c. 517, s. 5; 1995, c. 319, s. 9; c. 518, s. 1; 1997‑433, ss. 2.1(a), 2.2, 4.4, 7.1; 1997‑443, ss. 11A.118(a), 11A.122; 1998‑17, s. 1; 1998‑176, s. 1; 1999‑293, ss. 3, 4; 1999‑456, s. 13; 2001‑237, s. 1; 2003‑288, s. 1; 2008‑12, s. 1.)

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Raleigh divorce attorney Scott Allen handles child support, modification of child support, 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: Family Law Library Tagged With: administrative office of the courts, Alimony, child care, child custody, child suport, child support, child support enforcement, child support in the united states, child support obligation, child support owed, child support payment, children, department of health and human services, Divorce, family, family law, fathers' rights, human development, marriage, ncgs, noncustodial parent, north carolina, parenting, social issues

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

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.

Filed Under: Child Custody Tagged With: appeal, child custody, children, civil law, common law, contempt, contempt of court, court, criminal contempt, custody, Divorce, enforce, enforceable, family, family law, fathers' rights, get, how do i, law, my child, north carolina, North Carolina child custody, social issues

Custody of Minor Child – NCGS 50-13.1

§ 50‑13.1. Action or proceeding for custody of minor child.
(a) Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided. Any person whose actions resulted in a conviction under G.S. 14‑27.2 or G.S. 14‑27.3 and the conception of the minor child may not claim the right to custody of that minor child. Unless a contrary intent is clear, the word “custody” shall be deemed to include custody or visitation or both.
(a1) Notwithstanding any other provision of law, any person instituting an action or proceeding for custody ex parte who has been convicted of a sexually violent offense as defined in G.S. 14‑208.6(5) shall disclose the conviction in the pleadings.
(b) Whenever it appears to the court, from the pleadings or otherwise, that an action involves a contested issue as to the custody or visitation of a minor child, the matter, where there is a program established pursuant to G.S. 7A‑494, shall be set for mediation of the unresolved issues as to custody and visitation before or concurrent with the setting of the matter for hearing unless the court waives mediation pursuant to subsection (c). Issues that arise in motions for contempt or for modifications as well as in other pleadings shall be set for mediation unless mediation is waived by the court. Alimony, child support, and other economic issues may not be referred for mediation pursuant to this section. The purposes of mediation under this section include the pursuit of the following goals:
(1) To reduce any acrimony that exists between the parties to a dispute involving custody or visitation of a minor child;
(2) The development of custody and visitation agreements that are in the child’s best interest;
(3) To provide the parties with informed choices and, where possible, to give the parties the responsibility for making decisions about child custody and visitation;
(4) To provide a structured, confidential, nonadversarial setting that will facilitate the cooperative resolution of custody and visitation disputes and minimize the stress and anxiety to which the parties, and especially the child, are subjected; and
(5) To reduce the relitigation of custody and visitation disputes.
(c) For good cause, on the motion of either party or on the court’s own motion, the court may waive the mandatory setting under Article 39A of Chapter 7A of the General Statutes of a contested custody or visitation matter for mediation. Good cause may include, but is not limited to, the following: a showing of undue hardship to a party; an agreement between the parties for voluntary mediation, subject to court approval; allegations of abuse or neglect of the minor child; allegations of alcoholism, drug abuse, or domestic violence between the parents in common; or allegations of severe psychological, psychiatric, or emotional problems. A showing by either party that the party resides more than fifty miles from the court shall be considered good cause.
(d) Either party may move to have the mediation proceedings dismissed and the action heard in court due to the mediator’s bias, undue familiarity with a party, or other prejudicial ground.
(e) Mediation proceeding shall be held in private and shall be confidential. Except as provided in this Article, all verbal or written communications from either or both parties to the mediator or between the parties in the presence of the mediator made in a proceeding pursuant to this section are absolutely privileged and inadmissible in court. The mediator may assess the needs and interests of the child, and may interview the child or others who are not parties to the proceedings when he or she thinks appropriate.
(f) Neither the mediator nor any party or other person involved in mediation sessions under this section shall be competent to testify to communications made during or in furtherance of such mediation sessions; provided, there is no privilege as to communications made in furtherance of a crime or fraud. Nothing in this subsection shall be construed as permitting an individual to obtain immunity from prosecution for criminal conduct or as excusing an individual from the reporting requirements of Article 3 of Chapter 7B of the General Statutes or G.S. 108A‑102.
(g) Any agreement reached by the parties as a result of the mediation shall be reduced to writing, signed by each party, and submitted to the court as soon as practicable. Unless the court finds good reason not to, it shall incorporate the agreement in a court order and it shall become enforceable as a court order. If some or all of the issues as to custody or visitation are not resolved by mediation, the mediator shall report that fact to the court.
(h) If an agreement that results from mediation and is incorporated into a court order is referred to as a “parenting agreement” or called by some similar name, it shall nevertheless be deemed to be a custody order or child custody determination for purposes of Chapter 50A of the General Statutes, G.S. 14‑320.1, G.S. 110‑139.1, or other places where those terms appear.
(i) If the child whose custody is the subject of an action under this Chapter also is the subject of a juvenile abuse, neglect, or dependency proceeding pursuant to Subchapter 1 of Chapter 7B of the General Statutes, then the custody action under this Chapter is stayed as provided in G.S. 7B‑200. (1967, c. 1153, s. 2; 1989, c. 795, s. 15(b); 1998‑202, s. 13(p); 2004‑128, s. 10; 2005‑320, s. 5; 2005‑423, s. 4; 2007‑462, s. 1.)

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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.

Filed Under: Family Law Library Tagged With: child, child custody, child support, children, court, custody, dispute resolution, Divorce, family law, mediation, minor, ncgs, social issues, statutes, visitation

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.

Filed Under: Child Support Tagged With: Alimony, child custody, child support, children, deductible, Divorce, family, family law, fathers' rights, human interest, marriage, north, north carolina, parenting, payor, recipient, social issues, taxable, taxes

Taxes and Your Divorce – Alimony

As the year draws to a close one issue that many separated and divorcing couples have not considered is the impact of the tax laws on their divorce. Taxes absorb a significant amount of income and impact cash flow and wealth. If you are paying or receiving alimony there are important rules about how they impact your taxes.

Amounts of spousal suport paid under divorce or alimony order or written separation agreements entered into between you and your spouse or former spouse will be considered alimony for Federal tax purposes only if:

You do not file a joint tax return with your spouse or former spouse;
Payments are made in cash, checks or money orders;
The payment is received by your spouse or former spouse
The document under which it is paid does not say that the payment is not alimony;
You and your spouse are not members of the same household when you make the payment;
You have no liability to make the payment after the death of your spouse or former spouse, and
Your payment is not child support or for a property settlement.

Alimony does not include:

Payments for child support
Property settlements
Payments to keep up the payer’s property, or
Use of the payer’s property

The payor of alimony may deduct from income on his taxes the amount of alimony or separate maintenance paid. The recipient must include in income alimony or separate maintenance she received.

As indicated above, child support is never deductible. Also, noncash property settlements, whether in a lump sum or installments, are not alimony. Voluntary payments are also not considered alimony for tax purposes.

Filed Under: Alimony Tagged With: Alimony, alimony payment, cash flow, child support, Divorce, divorce decree, family, family law, federal taxes, itemized deduction, law, marriage, payments, social issues, spouses, tax laws, taxes

Things a Divorce Lawyer Won’t Tell You Unless You Ask

If you are considering hiring a divorce lawyer to help you there are certain questions you need to ask during your consultation.

Many lawyers will address these things without you asking them but many won’t unless prompted. Here are some questions you should ask.

How many years of experience do you have in family law? Lawyers that have not been doing family law for long are unlikely to come out and say it out of fear that the potential client won’t hire.
Do you do anything other than family law? All lawyers have law degrees, but many lawyers have several practice areas they work in. If you had a heart problem you likely would not want your general practitioner to operate… you’d want a heart surgeon. Why would you want a generalist to handle your divorce case? Alimony, equitable distribution, and other family law issues are complicated.
What steps are involved in the process and how long will it take? It is the first time you’ve been through but your lawyer has doen it many times. Your lawyer should tell you the steps in the process. if you get the sense that the lawyer does not know the steps you should be talking to another lawyer.
How much will this cost me? There are two schools of thought among lawyers about how to charge for their time in family law cases: flat fees and hourly. The lawyer should indicate that your fees will be set out in a written agreement. Make sure you know the hourly rate of your lawyer and staff that works on your case.
How will we communicate? Most lawyers these days will use email. Ask your lawyer if they prefer phone contact over email, and how long you should expect to wait for a return call or email response.
Do you recommend mediation? Some lawyers like to settle cases and don’t like to go to court. Some lawyers like to go to court and settlement is a last option. You want an attorney that is a skilled trial lawyer and who thinks settlement should be attempted whenever possible.
What fees and costs can I expect other than charges for your time? Your local county clerk’s office will charge a filing fee to open a case. There are also filing fees for motions and service fees if you have to pay a process server to serve your spouse with divorce papers. Your case may require experts, such as custody evaluators, appraisers, accountants, social workers, or psychologists. Ask your lawyer what costs to expect, what experts may be needed, and how you will be charged for these additional services.
How would you predict a judge would rule on the issues in my case? No lawyer can or should guarantee a result; however, they can give you an idea of what a likely result would look like and give you an idea whether or not the outcome you want is likely or unlikely.
How do you share information with me? In 2012 there is no reason for any attorney not to make provisions for a client to be able to access documents in their case over the internet and to get immediate notification when a document is posted to their file. Your attorney should have email and be willing to share his or her cell phone number with you.

____________________

Raleigh divorce lawyer Scott Allen handles alimony, equitable distribution, child support, child custody, and temporary custody 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: Getting Started Tagged With: ask, attorneys, child support, costs, Divorce, divorce lawyers, divorce papers, family, family law, law, lawyer, lawyers, mediation, prepare, questions, tell, things, trial lawyers, unless

Should I Settle My Raleigh Custody Case?

Raleigh Child Custody Attorney Scott Allen on Settling Child Custody

Child custody decisions are often the most difficult part of any divorce. I get asked this question all the time: ”Scott, should I settle my child custody case?” I always say yes, settle child custody if you can.

Why you should try to settle your Raleigh child custody case.

It is best for child custody cases to settle. Whether you have a North Carolina child custody case or you are in another state, take my word for it: you really should want to settle your child custody case.

I would not wish a child custody case on my worst enemy (I don’t think I have any enemies, but if I had one I wouldn’t wish it on him or her). Why? Because child custody cases stink. They mess up children, they mess up relationships, and they cost a lot of emotional and financial resources.

Focus on the Best Interest of the Child.

Parents should look beyond their personal feelings and look at what their children need and work together as parents to help their children. The “best interest” standard is the same concept the district court judge considers in a child custody case. If both parents focused on their children’s needs rather than the parents wants or desires, the children would always be better off.

Invariably, I say these things and I hear the following: “Scott, I would settle if he/she would just be reasonable” or “what he/she is suggesting for custody is not good for the kids.” I try to then point out that the other parent is likely saying the same thing to his/her lawyer about you. That usually does not go over well, but I encourage my clients to see the world from the other parent’s point of view.

Can every Raleigh child custody case be settled?

I try to get parents to see the value in working out their custody issues. Nonetheless, they sometimes don’t or won’t settle. However, not every case can be settled because sometimes the parents’ views are simply irreconcilable, and a judge must make a decision. Additionally, some parents engage in parental alienation. Some clients do listen to my advice and try to settle but their spouses or ex-spouses are not listening to their attorneys. Sometimes a parent has a substance abuse problem or some psychological problem that makes settlement impossible.

Who should I call if I need help with a Raleigh child custody case?

As I write elsewhere, you should talk to at least two different Raleigh divorce lawyers before you decide upon who to hire. If you want to talk to me about your case and possible representation, call me at (919) 863-4183 or email at sallen@allenspence.com.

Filed Under: Raleigh Tagged With: child custody, child custody cases, children, custody, Divorce, enemies, family, family law, fathers' rights, financial resource, human development, marriage, messes, noncustodial parent, North Carolina child custody, parenting, scott allen, settle, settles, social issues, wishes

What is Parental Alienation?

Parental 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.

____________________

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.

Filed Under: Child Custody Tagged With: child abuse, child custody, children, Divorce, domestic violence, family, family law, hatred

Can a Child Decide Which Parent Gets Custody in NC?

I 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.

____________________

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.

Filed Under: Child Custody Tagged With: child, family, family law, gets, law, marriage, north carolina laws, parenting, raleigh, scott allen

Infidelity Testing in North Carolina

I’m a divorce lawyer who clicks around Google quite a bit. I came across some information that each month about 1600 Americans do a Google search for “infidelity testing. So for November that number is now 1601; I had to see what all the searching was about.

When you search for “infidelity testing” you’ll mainly get links to sites that sell kits that are advertised as a way of detect semen in clothing. They are marketing to the man who thinks his wife is cheating. So you know where that is going and it is fascinating.

Let me start with quoting a testimonial from one of the high-ranking results for one of these test products:

“XXXXXX is the real deal. I had some clothing tested at a certified DNA Lab that is ISO certified and have all the legal certifications a lab has to have. The same clothing I tested with XXXXXX, the Lab found to be positive for sperm and semen. They even sent me micro pics of the little devils. All this was after I had the items checked with XXXXXX. This product is the real deal, case closed!!!!!!”

Case closed! No, not really. A review of the product and its implications left me with some unanswered questions:

How could this benefit/hurt one of my divorce clients; and
How could I get the results of one of these tests into evidence (perhaps over the chuckles of the district court judge?)?

Let’s explore these issues.

First, how could this benefit a client?

On one level solid proof of infidelity adds some certainty to what might have been simple concerns or a hunch about marital infidelity. This certainty allows the wronged spouse to make decisions about either working on the marriage or divorcing with more information, and in rational decision-making, more information usually helps.

Proof of adultery still has a place in North Carolina divorce law. This kind of sexual behavior could impact alimony and divorce from bed and board cases. Without going into many of the details in this article, the classic methods of proving adultery in North Carolina cases is by (1) someone admitting the adultery, (2) someone saying they saw the adultery, or more usually, (3) by circumstantial evidence of opportunity and inclination.

How could it hurt a client?

Unfortunately, the results could be wrong. That could lead to bad consequences for the marriage and for the client if it is wrongly assumed the results are correct.

Second, from the clients’ point of view, they all say they want to know if their spouse is cheating or not. I have had strong men break down crying in my office after I told them what our PI reported that the client’s wife had been up to. It’s devastating knowledge.

It’s probably also the case that if a person is at a point of swiping their wife’s underwear to send off for testing at some location far away has some marital layers of distrust and underlying marriage problems that put them in the pipeline for a divorce.

How Could I get These Results into Evidence?

It would not be easy. In fact, I don’t think a judge is going to let one of the home test kit results into evidence.

In cases I have handled the district court judges are certainly open to allowing competent scientific evidence in, but there are rules and there are limits. The science has to be good and the procedures have to be good.

There is chain of custody of the evidence issues, and there is the issue of authenticating the results.

About the only way to get this kind of DNA evidence in would be to have sent the sample off to a lab and then I would need to have an expert from the lab in to court to talk about the chain of custody and scientific method and procedures. The chance of a judge simply letting the report in is remote.

Also, if I wanted to object to any of this going in, there is a fundamental problem of exclusion. That is, how do we prove the semen found on the tested article is not that of the husband? Would that add another level of scientific testing and proof?

In conclusion, with enough financial resources and great care in how this is gone about, there would be a possibility of certain kinds of testing and test results be deemed competent evidence. However, when all is said and done it might have been better for the client to hire a private investigator to follow the suspected spouse.

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Raleigh divorce attorney Scott Allen has over seventeen years of experience in family law, contested alimony, and divorce from bed and board cases in Wake County and many other counties across North Carolina.

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

Filed Under: Discovery and Depositions Tagged With: evidence, family law, get, infidelity test kit, infidelity testing, marital infidelity, sexual fidelity

Scott Allen Approved as Parent Coordinator

Raleigh, November 24, 2011.

Raleigh divorce lawyer Scott Allen has been approved as a parent coordinator by the chief district court judge of the 10th Judicial District in Wake County.

When asked about his role as a parent coordinator, Mr. Allen explains: “I am excited for the opportunity to help families in this way. A district court judge in North Carolina may appoint a parenting coordinator in certain child custody cases. If asked to help in a case, my role is to reduce conflict between the parents for the welfare of the children in high conflict child custody cases.”

Mr. Allen further explained that a parent coordinator does not replace the district court judge in the assigned family court case but is only there to help in a difficult child custody case. The role of the parent coordinator is as defined by the judge in the high conflict custody case and, depending on the case, Mr. Allen says he may be called on 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. In other words, I will be there to help promote the best interest of the children.”

Under North Carolina law, 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. These high-conflict cases are some of the most difficult cases for the courts to deal with because the high level of parental animosity and the impact on the children.

Mr. Allen says he looks forward working with families as a parent coordinator.

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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.

Filed Under: Press Releases Tagged With: 10th, allen, approved, child custody, Divorce, divorce lawyer, family, family law, fathers' rights, human development, marriage, noncustodial parent, north carolina, parent coordinator, parent coordinators, parenting, raleigh, raleigh divorce lawyers, scott allen, social issues, wake county

New Firm Announced: Allen and Spence

Raleigh, November 24, 2011

Attorneys Scott Allen and Amanda Spence announce the formation of a new Raleigh divorce law and elder law firm, Allen & Spence. The new office is located in The Atrium at 2501 Blue Ridge Road in Raleigh.

While Allen & Spence is a new firm, the partners have each practiced law in Wake County for over seventeen years.

Scott Allen is a trusted and experienced litigator, mediator, and appellate lawyer. He works with individuals and families in matters of child custody, child support, equitable distribution, alimony, divorce, domestic violence, and alienation of affection and criminal conversation cases.

Amanda Spence is an experienced and trusted elder law attorney. She works with families and individuals in matters related to elder law, trusts, nursing home issues, Medicaid, wills and estates.

Scott Allen and Amanda Spence are both graduates of the University of North Carolina School of Law. Mr. Allen received his undergraduate degree, with honors, from North Carolina State University and Ms. Spence received her degree, with honors, from the University of North Carolina at Chapel Hill.

According to Mr. Allen: “The population in the here is getting older and recent U.S. Census data indicates that North Carolina couples marry and divorce at slightly higher rates than people in most other states. It’s well known that divorce, death, and long-term illness of a family member are among the most stressful events in life. We are caring, experienced attorneys and are able to guide our clients through life’s trying times.”

The Raleigh family law firm of Allen & Spence, located on 2501 Blue Ridge Road, Suite 250, in Raleigh, N.C., concentrates on family law and elder law, including divorce, child custody, child support, visitation, alimony, post-separation support, equitable distribution, Medicaid, wills, trusts and estates. Mr. Allen is also a trained mediator and is a parent coordinator.

For more information, contact the firm by calling (919) 863-4183 or visit www.allenspence.com.

Filed Under: Press Releases Tagged With: Alimony, allen, amanda spence, child support, Divorce, divorce law, elder law, family, family law, firm, human development, human interest, law, laws, marriage, new law, north carolina, raleigh, scott allen, social issues, spence

Parent Coordinator in Child Custody Cases

A 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.

Filed Under: Child Custody Tagged With: child custody, child custody cases, district court judges, Divorce, family, family law, law, parent coordinator, parent coordinators

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.

____________________

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.

Filed Under: Child Custody Tagged With: child custody, custody, custody fight, district court, Divorce, ex parte, family, family law, fathers' rights, human development, law, marriage, mothers' rights, north carolina, north carolina district court, protect children, temporaries, temporary child custody, temporary custody

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.

__________________

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.

Filed Under: Child Custody Tagged With: best interests, child custody, child support, child visitation, children, communication, contact, custody, Divorce, electronic, electronic communication, family, family law, fathers' rights, human development, marriage, north carolina district court, north carolina laws, parenting, skype, social issues, visitation

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.

Filed Under: Child Custody Tagged With: bergeron v. bergeron, best interests, child custody, child custody cases, child custody modification, child support in the united states, children, Divorce, family, family law, family law attorneys, fathers' rights, human development, law, laws, marriage, modification, north carolina, north carolina laws, parenting, scott allen, social issues

Divorce from Bed and Board

With decreasing frequency in my practice over the past seventeen years I get asked about divorce from bed and board.

“Divorce from bed and board” under North Carolina law is a judicial separation. In other words, it is a separation authorized by the court. This action suspends cohabitation, but does not dissolve the marital relationship like an absolute divorce.

A claim for divorce from bed and board must be based on certain statutory marital fault grounds that include adultery, abandonment, and other bad marital conduct. A spouse defending this claim may defend by denying the grounds or by raising certain legal affirmative defenses such as condonation (forgiveness) and recrimination (the complaining spouse committed fault to and is therefore not entitled to the divorce from bed and board).

So what does a divorce from bed and board accomplish? Most of the time these actions are filed to get one spouse out of the house and to cut off certain rights as set out in G.S. 31A-1(b).

So why did I start off this article by talking about the decreasing frequency of these claims? Because I have noticed fewer after the 1995 amendments to the alimony laws in North Carolina. Prior to 1995, fault played a much greater role in the entitlement of alimony than it did after the changes in the law.

That is not to say there is no basis to file for divorce from bed and board. there could be good reasons to do so in certain cases. When the spouses just can’t get to a separation it is really the only claim that makes sense to file to attempt to cause a separation. I have seen a few cases where a court heard child custody prior to the parties’ separation and granted custody an possession of the house to one parent; however, I have also seen some judges refuse to deal with custody until the separation occurs.

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Family law attorney Scott Allen has litigated divorce from bed and board cases 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: Divorce Tagged With: absolute divorce, Alimony, bed, bedding, divonorth carolina laws, Divorce, family, family law, fault grounds, get, human interest, law, legal separation, no fault divorce, recrimination, separation, social issues

Postnuptial and Postmarital Agreements

Unlike a premarital agreement which is signed by the parties before they got married, a postnuptial agreement is an agreement entered into between a husband and wife during marriage.

A postnuptial agreement must not violate public policy. Also, a party cannot waive alimony in a postnuptial agreement unless it is a separation agreement. A husband and wife living together and not contemplating imminent separation that purports to quantify or limit the duty of support is void as against public policy.

Family law attorney Scott Allen has drafted and litigated about postmarital agreements 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: Premarital Agreements Tagged With: agreement, family law, postmarital, premarital

How Can I Modify or Revoke My Premarital or Prenuptial Agreement?

I have been asked this question many time over my years of practice: ”I signed a premarital agreement, got married, and now don’t want it; how can I make it go away?” The answer provided by G.S. § 52B-6 and case law on the issue is that the premarital agreement act in North Carolina provides that a premarital agreement may be amended or revoked after marriage only by a written agreement signed by the parties.

If you want to get out of your prenuptial agreement you need to sit down with your spouse and talk about it. If he or she does not agree to change it or make it go away, your only choice is to see if you can get the agreement to be declared invalid.

Also, under certain circumstances a party who does not want to be bound by a premarital agreement can prove that it is unenforceable by showing: (1) The party did not execute the agreement voluntarily; (2) The agreement was unconscionable when it was executed and, before execution of the agreement, the party:

Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

As you can see, the issue of disclosure in a premarital agreement should get close attention by you and your lawyer.

It is also very important not to “spring” a premarital agreement on your fiancé just before the wedding. Not only would doing that likely spoil your relationship with your fiancé, it could create an argument about duress. Also, to protect the integrity of the agreement, you and your fiancé should have different lawyers.

Family law attorney Scott Allen negotiates and drafts premarital agreements 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: Premarital Agreements Tagged With: family law, marriage, modification, modify, north carolina, postnuptial agreement, premarital agreement, prenuptial agreement

Premarital Agreements

North Carolina adopted a version of the Uniform Premarital Agreement Act and our version of the act is is applicable to any premarital agreement executed on or after July 1, 1987.

A premarital agreement is a documents signed by parties in anticipation of marriage that addressees what will happen in the event of divorce of a spouse or death of a spouse.

Unlike a regular contract, a premarital agreement is enforceable without the exchange of consideration by the parties. Consideration was a traditional element of contracts under the common law and, in essence, meant that the parties must bargain for and exchange something of value before a valid contract is created. In family law, North Carolina has abandoned this common law requirement both in premarital agreements and separation agreements.

Although consideration is not required, a valid premarital agreement under the premarital agreement act must have certain qualities:

A premarital agreement must be in writing and signed by both parties.
A premarital agreement is effective upon marriage and marriage is a prerequisite of an effective premarital agreement. This means that if the parties do not marry the premarital agreement is not valid.
Premarital agreements may dispose of their property upon divorce through the provisions of the agreement rather than by equitable distribution.
Premarital agreements under North Carolina law may control rights and obligations in property, whenever and wherever acquired or located.
“Property” is defined as “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.”
Premarital Agreements may control the right to sell, transfer, buy, use, exchange, abandon, lease, consume, expend, assign, encumber, dispose of, or otherwise manage and control property.
Premarital agreements may bar alimony and postseparation support and attorneys fees under certain circumstances.
Premarital agreements may control the making of a will or trust to carry out the agreement.
Premarital agreements may impact ownership rights in and disposition of the death benefit in a life insurance policy.
A premarital agreement may define which law applies to it.
Finally, a premarital agreement may control “Any other matter, including personal rights and obligations, not in violation of public policy or a criminal statute.”

Premarital agreements can be attacked under certain circumstances. Here is an excellent article that deals generally with attacking agreements under the UPAA.

Family law attorney Scott Allen drafts, negotiates, and litigates premarital agreements 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: Premarital Agreements Tagged With: agreement, agreements, common law, contract, contract law, death law, Divorce, equitable distribution, family, family law, law, legal documents, marriage, north carolina, north carolina adopt, north carolina laws, overview, postnuptial agreement, premarital agreement, prenuptial agreement, relationship education, separation agreements, uniform premarital agreement act

What is Equitable Distribution in NC?

Equitable distribution is the the process by which a court in North Carolina identifies, classifies, values and divides property between spouses.

Prior to new laws being enacted in 1981 by the general assembly, North Carolina was a common law “title” jurisdiction with regard to property distribution after divorce. Property was allocated after divorce to the party holding title, a disposition that “tended to reward the spouse directly responsible for its acquisition, while overlooking the contribution of the homemaking spouse.” This meant that before property went to whichever spouse had legal title at the time of divorce. For example, if a spouse owned a car in her name, even if it was purchased during the marriage with marital money, it would go to the spouse who’s name was on the title.

In 1984 the NC Court of appeals explained the rationale of the legislature: “Our equitable distribution statute, G.S. 50-20, was enacted in recognition of marriage as a partnership, economic and otherwise, to which both parties contribute either directly or indirectly. By enacting G.S. 50-20, our Legislature granted courts the power to consider factors other than legal title in distributing the marital assets upon the dissolution of the marriage thereby permitting courts to make an equitable distribution which effects a return to each party of that which he or she contributed to the marriage. As we interpret it, the policy behind G.S. 50-20 is basically one of repayment of contribution.” Hinton v. Hinton, 70 N.C.App. 665, 668-69, 321 S.E.2d 161 (1984).

Since the enactment of equitable distribution law in North Carolina, the courts and general assembly have been working to interpret and clarify the law. Today, equitable distribution is one of the most complex ares of North Carolina family law.

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Raleigh lawyerScott Allen handles property distribution and all other types of family law matters 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: Property Distribution Tagged With: common, division of property, Divorce, equitable distribution, family, family law, property distribution

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Postnuptial and Postmarital Agreements

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Premarital Agreements

What is Equitable Distribution in NC?

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