You are here: Home / Archives for scott allen

No Child Support, No Visitation?

 

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

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

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

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

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

____________________

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: , , , , , , , ,

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.

 

Filed Under: Raleigh Tagged With: , , , , , , , , , , , , , , , , , , , ,

Best Interest of the Child in North Carolina

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

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

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

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

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

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

 

____________________

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

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

 

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

Can a Child Decide Which Parent Gets Custody in NC?

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

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

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

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

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

____________________

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: , , , , , , , , ,

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.

____________________

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: , , , , , , , , , , , , , , , , , , , ,  

	

		


				
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: , , , , , , , , , , , , , , , , , , , ,  

	

		


				
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: , , , , , , , , , , , , , , , , , , , , ,  

	

		


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

			






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


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


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


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


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










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


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


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


 



		

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