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North Carolina Family Law Glossary

North Carolina Family Law Glossary

North Carolina Family Law Glossary  Acceptance of Service.  Signing a document that says you “accept” legal service of documents instead of having a sheriff hand them to you. This is usually done when both parties have attorneys. Affidavit or Sworn Statement.  Written document signed under oath, under penalty of perjury, in the presence of a notary or other authorized person. It functions as sworn testimony. Answer and Counterclaims. An Answer is the defendant’s written response to the allegations that a plaintiff has made in the Complaint, the document that generates the lawsuit. The defendant usually adds his or her own claims, such as alimony or child custody, called Counterclaims. These two things usually happen together, resulting in one document called the Answer and Counterclaims.  Then the plaintiff has the right to give his or her response to the Counterclaims, which is called the plaintiff’s Reply to the Answer. Arbitration. A form of alternative dispute resolution done only by agreement of the parties in North Carolina family law cases. Using this process, both parties hire an agreed-upon arbitrator who makes a decision/ruling in your case instead of using a judge. Child Custody Mediation. In North Carolina, it is a form of alternative dispute resolution that is usually mandatory after a custody case is filed. The mediator does not make any decisions in the case. Instead, the mediator helps parents work towards an agreed-upon visitation schedule.  Only the parents or guardians are allowed to attend custody mediation. Agreements are signed by the parties and the judge, making them valid court orders. If mediation is unsuccessful, the case goes to court. Child Support. Money paid by one parent to the other to support a child. There is no “accounting” of how money is used. It is almost always based on the formula used by the NC Child Support Guidelines.  The formula uses incomes, health insurance, work-related childcare and the number of overnights per year that a parent has with his or her child if it is 123 or more overnights. Child Support Enforcement/Services. Through attorneys and child support workers, it is a government agency that helps parents obtain and/or enforce child support orders, and in some cases determination of paternity and/or past government benefits provided for a minor child. Complaint. Document filed at the courthouse that starts a lawsuit, filed by a plaintiff. It contains claims, such as equitable distribution of marital...

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Harassment and Substantial Emotional Distress as Domestic Violence

Harassment and Substantial Emotional Distress as Domestic Violence

Harassment and Substantial Emotional Distress as Domestic Violence in North Carolina By Amy A. Edwards What Are the Grounds for DVPOs? There are four different grounds for the granting of a DVPO in North Carolina. One ground for getting a DVPO is any attempt someone makes to cause bodily injury, or intentionally causing bodily injury. Another ground is committing sexual assault against someone. These two grounds are more objective, looking at what any reasonable person would think about what happened. These grounds are sometimes easier to prove than the next two grounds. The court will grant a DVPO is someone places someone “in fear of imminent serious bodily injury . . . that rises to such a level as to inflict substantial emotional distress.” And the last ground for a DVPO is when someone places someone “in fear of continued harassment that rises to such a level as to inflict substantial emotional distress.” [1] These require the court to make a ruling about how the victim specifically feels about what happened, using a subjective standard instead of looking objectively at how any reasonable person in that situation would likely feel. In other words, the court can find that grounds for a DVPO just because the victim was fearful because of what the defendant did even if most reasonable people wouldn’t be fearful. What’s the Legal Definition of Harassment? Our criminal statutes for stalking define harassment as “[k]nowing conduct . . . directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose.” There are many ways someone can commit harassment, including “written or printed communication or transmission, telephone, cellular, or other wireless telephonic communication, facsimile transmission, pager messages or transmissions, answering machine or voice mail messages or transmissions, and electronic mail messages or other computerized or electronic transmissions.” [2] What is Substantial Emotional Distress? For the court to enter a DVPO, there has to be harassment but it must also lead to substantial emotional distress to the person allegedly being harassed. The criminal laws define what this means in fuzzy terms: Significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling. [3] What meets the standard of harassment that causes this level distress? Like most legal issues, there’s no clearly defined answer because North Carolina courts look at each situation on a case-by-case basis. In one case, the...

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Deployed Parents Act: Rights of Non-Parents (Part 2 of 2)

Deployed Parents Act: Rights of Non-Parents (Part 2 of 2)

Deployed Parents Act: Rights of Non-Parents (Part 2 of 2) Part one of this article discusses the problems military parents faced before the Act, who qualifies for the protections of it, and what the benefits are. This article focuses on third parties (non-parents). Parents can make temporary agreements that allow non-parents to spend time with a child during deployment and ask the court to treat the agreement as a court order. Or, a judge will have a trial on the deploying parent’s request to appoint a non-parent to have temporary legal rights during deployment. Custodial Responsibility The Act uses Custodial Responsibility as a comprehensive term that includes any and all powers and duties relating to a child. The non-parent must be named a party to the lawsuit on a temporary basis during deployment. All types of Custodial Responsibility are available only to non-parents. The non-parent must be family member, including a sibling, aunt, uncle, cousin, stepparent, grandparent, or a person “recognized to be in a familial relationship with a child.” If the non-parent isn’t a family member, he or she must be someone with a close and substantial relationship with the child, meaning there is a significant bond between them. Without any formal agreement or a court order awarding Custodial Responsibility, no other person has any rights to visit or communicate with a child while a parent is deployed. Three Types of Custodial Responsibility • Caretaking Authority A court may grant Caretaking Authority to a non-parent only if it is in the child’s best interest to do so. A deploying parent who nominates someone to have Caretaking Authority is asking the court to let that person exercise the right to live with a child and care for that child on a day-to-day basis. It is roughly equal to physical custody and it includes the legal right to visitation, possession of a child for lack of a better word. It also includes the ability to make day-to-day decisions while the child is with that person, including the authority to designate another person to have limited contact with a child. For example, an aunt given Caretaking Authority may legally consent for the child to spend Saturday afternoon with grandparents during her weekend of visitation. Unless the parents agree, Caretaking Authority can’t give the non-parent more time than the deploying parent has in any existing custody order, or more than “the amount...

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What Happens to Child Support When a Special Needs Child Reaches 18?

What Happens to Child Support When a Special Needs Child Reaches 18?

What Happens to Child Support When a Special Needs Child Reaches 18? By Amy A. Edwards Before 1979, North Carolina parents had a legal obligation to support their child if he or she was mentally or physically incapable of self-support upon reaching age 18, the age of majority. There was considerable debate about whether to keep parents’ responsibility in place or end support at age 18. Now, although there aren’t any specific child support laws for children who have special needs, support can be extended to a maximum age of 20 in certain circumstances. Support can’t be ordered past age 20 unless the parent signs a contract saying so. Child Support Law In North Carolina, unless there’s a contract that says otherwise, child support continues after age 18 if “the child is still in primary or secondary school when the child reaches age 18.” In that event, support continues until “the child graduates. . . ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first.” NC Gen. Stat. §50-13.4. Non-Traditional Progress In 2001, forty years after repealing the statute that required parents to support their child if he or she was incapable of self-support, our Court of Appeals made a small step towards helping special needs children when it clarified that special needs children aren’t penalized just because they are not in a traditional high school. John Hendricks had Down Syndrome and attended a special program in a high school that taught “vocabulary and activities of daily living such as how to count money.” When he reached the age of 18, his mom asked the court to end her child support obligation because he wasn’t making satisfactory academic progress towards graduation. He wouldn’t receive a traditional high school diploma. But John’s teacher and school counselor testified that “John’s attendance at school is in his best interests, [and] that he would continue to benefit in the future from the curriculum.” The Court of Appeals held that John was making satisfactory academic progress toward a non-traditional graduation, and it was equivalent to a traditional graduation. Child support would remain in place up to age 20 so long as John made progress in his program. The Court wrote: If John were not mentally disabled but instead was enrolled in a traditional high school curriculum, it is clear support would...

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Overwhelmed: Where Do I Begin?

Overwhelmed: Where Do I Begin?

Overwhelmed: Where Do I Begin? By Amy A. Edwards First: The Consultation A consultation is not the same thing as hiring an attorney. It is simply a meeting with an attorney, who should then give you legal advice and tell you what the cost is to hire that attorney. After the consult, it is the client’s decision whether to hire the attorney. The client might choose to do nothing at all after a consult. In fact, a number of people having problems with their relationship have consults because they want to know what their options are if the relationship deteriorates in the future.  The meeting is a chance for you to bring a list of questions you have so that you can get the answers you need to make serious decisions in your life. It can be helpful to do some research to get a general information about the process, but the attorney gives you legal advice based on your specific situation. After a consult, it is common for clients to say that they feel so much better knowing what the real issues are, and what the possible solutions are. They’re sometimes surprised to discover that threats or information from the other parent or spouse is not accurate or even feasible, which can be a big relief. Second: After the Consult Once you have a few answers, you can then decide whether you are ready to move forward with the separation, custody case or other important legal matter. However, if you have been served with a lawsuit or motion, that first decision is made for you. To begin working on your case, our office requires an advance of funds to be placed in your account. Sometimes, people refer to this as a retainer. If money remains in your account at the end of your case, our office returns it to you. More often, things take longer than anticipated. This is partly because it is difficult to tell how much the other party will truly dispute. If the dispute ends up in litigation, we cannot control the court system and whether there are trial dates, civil discovery, and other litigation events. The attorney your ex hires can also make a big difference, including whether he or she is willing to make any good faith efforts to settle the case before there is a trial.  Third: Relief of Sharing the Burden The next phase after your...

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