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Emergency Child Custody in North Carolina

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

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

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

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

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

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

 

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

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

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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.  

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

Raleigh Child Custody

Child Custody Orders and Enforcement

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

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

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

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

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

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

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

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

Taxes and Your Divorce – North Carolina Child Support

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

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

Q: Who gets to claim the child on taxes?

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

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

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

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

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

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

A:  No.

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

A: No.

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

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

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

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

 

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

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

Filed Under: Child Support Tagged With: , , , , , , , , , , , , , , , , , ,

Should I Settle My Raleigh Custody Case?

Child Custody in NC

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.

 

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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.


		

		
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Temporary Custody in North Carolina
 
		
				

			


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


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


 


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


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


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












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


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


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


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


 


 


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


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









		

		
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Custody and Visitation by Skype and Facetime
 
		
				

			






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


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


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


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


    

  • Whether electronic communication is in the best interest of the minor child.
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  • Whether equipment to communicate by electronic means is available, accessible, and affordable to the parents of the minor child.
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  • Whether there is any other factor the court deems appropriate in determining whether to grant visitation by electronic communication.
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The statute does not allow electronic communication as a replacement or substitution for custody or visitation.   This an important point, especially for parents who live long distances form their children.  Also, this makes it clear that electronic communications are merely a supplement to face-to-face and in person visitation.


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


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


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


 


 



		

		
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Modification of Child Custody in North Carolina
 
		
				

			






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


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


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


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


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
















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


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


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


    

  • The change of circumstances must be substantial;
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  • The district court judge must consider changes that have salutary effects upon the child and those which will have adverse effects upon the child;
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  • Speculative evidence that a substantial change may occur sometime in the future will not support a change in custody.
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  • The evidence must demonstrate a connection between the substantial change in circumstances and the welfare of the child.
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Raleigh family law attorney Scott Allen handles child custody cases every day  and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.









		

		
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