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On the Front Lines: Parenting Coordinators in Custody Cases

On the Front Lines: Parenting Coordinators in Custody Cases

On the Front Lines: Parenting Coordinators in Child Custody Cases By Amy A. Edwards Most people know a judge can make rulings in custody cases, but did you know that in North Carolina, a Parenting Coordinator (PC) can too? Our state requires them to have a masters or doctorate degree in psychology, law, social work, or counseling, and must have specialized training in topics related to the developmental stages of children, the dynamics of high-conflict families, the stages and effects of divorce, problem solving techniques, mediation, and legal issues. There are other eligibility requirements. What Do Parenting Coordinators Do? Courts always maintain the exclusive right to determine fundamental issues of custody and visitation, and to determine the way the case will proceed. Courts appoint PCs to make decisions that help the parties comply with custody orders, resolve disputes about issues that might not specifically included in the orders, orders that are ambiguous or orders that have conflicting terms. Although PCs can’t change custody orders, they can supplement or implement them with their own written orders. How Do You Get a Parenting Coordinator? The judge must decide that appointing a PC is in the best interest of the child, that the parents can afford to pay the fee charged by the PC and that their case is a high-conflict case. The law defines high-conflict case as one with an ongoing pattern of any of these: Excessive litigation, anger and distrust, verbal abuse, physical aggression or threats of it, difficulty communicating about and cooperating in the care of the child. Usually the court requires a meeting called an appointment conference. At that meeting the judge will enter an appointment order, which must say how the PC will handle matters, how his or her fees will be paid, and list the specific issues that the PC is authorized to handle. The judge must also explain the PC’s role, authority, and responsibilities that are in the appointment order. The rules regarding communications among the parties, the court, the attorneys and the PC must also be explained. What Issues Can Parenting Coordinators Address? When a judge appoints a PC, he or she can give the PC very limited authority or very broad authority, depending on the circumstances. The 2019 revisions to the law authorize a judge to appoint a PC who can specifically address: alterations to a child’s appearance, including tattoos or piercings, transition...

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Grey Divorce: Issues For Older Spouses

Grey Divorce: Issues For Older Spouses

Grey Divorce: Issues For Older Spouses By Amy A. Edwards Middle-aged and older spouses have the same issues as other couples when they separate and divorce, although they are viewing them from the other direction. They don’t usually have any minor children but they often have substantial assets. People in second or third marriages are more likely to have premarital agreements or “prenups” that dictate what must be done about property and alimony if the couple splits. Another likely scenario of those with silver hair and more than one marriage under their belts is tracing property.  In our state, tracing is used to decide what share of an asset is separate property, and what share, if any, is marital property. This is expensive and time-consuming especially when addressing real estate, investment and retirement accounts. Therefore, this article assumes all assets are marital property and that there is no premarital agreement. Alimony & Expenses North Carolina courts must consider the incomes and reasonable expenses of both spouses in alimony cases.  Spouses who are nearing age 65 are facing Medicare and “doughnut hole” insurance instead of private insurance. Medicare could make things better or worse financially when compared with the health, vision and dental insurance offered by a spouse’s employer and whether the employer paid at least part of the premiums. Settlements and court orders for people nearing 65 typically take this into account, changing the amount of support once one or both spouses have Medicare coverage. Older spouses routinely lose loved ones and inherit property. While inheritances are usually considered separate property, assets such as rental property or investments are considered income for purposes of alimony. Alimony: When Should You Retire? When alimony is looming, parties may bicker about the reasonable age that the breadwinner or the financially dependent spouse should retire. Although it is extremely rare, I’ve actually had a case in which the judge ruled that the breadwinner couldn’t afford to retire at a certain age.  Of course, he was legally free to retire any time but his alimony was still ordered based on the same income he had from his employment. Judges consider a number of things when deciding if someone should be able to retire for purposes of determining income for an alimony case, including age, health, work history and whether the spouse is genuinely ready to retire or just saying that for court. Parties might...

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Do You Have to Force Your Child to go for Visitation?

Do You Have to Force Your Child to go for Visitation?

Do You Have to Force Your Child to go for Visitation? By Amy A. Edwards The courts assume it is almost always in a child’s best interest to spend time with both parents, even if a child isn’t getting along with a parent. If there is no agreement, a parent can file a custody case and reach an agreement in custody mediation, or have the judge enter an order that will include a visitation schedule. This article applies to cases in which parents have a child custody order.  Cases that involve violence, substance abuse or serious dangers to children are outside of the scope of this article. Enforcing Visitation Orders: Contempt If the parent believes the other parent is willfully violating the order, he or she can file a motion to hold the other parent in civil or criminal contempt of court. Depending on circumstances, a judge has the authority to impose fines, make the other parent pay attorney’s fees, or in drastic cases, incarcerate the parent.  The key is whether the parent is intentionally violating the order, which requires an answer to the question of what is reasonable for a parent to do in those circumstances. What is Willful Violation of the Order? Judges decide whether parents intentionally violate orders on a case-by-case basis. In assessing the problem, consider whether there is a different reason for the friction. In the midst of a divorce or breakup between parents, a child might become estranged with a parent that he or she perceives did something bad. Sometimes, children play one parent against the other, taking advantage of the difficulty parents have in trying to co-parent. Parents who use the child to communicate between them not only put their child in the middle; they inadvertently set themselves up for this tactic. A parent’s willful violation of an order is almost always shown by a pattern of behavior.  A few examples include failing to have a child packed and ready for visitation, not bringing a child back to the other parent as scheduled, intentionally scheduling other events during the other parent’s visitation, or “canceling” visits and making no effort to schedule make-up the time.  Most orders require that neither party speak badly about the other parent in front of the child. Discouraging the child from going with the other parent by doing that is also a willful violation. What Are the Parent’s...

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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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