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Standing: Who Can and Can’t File for Child Custody

Standing: Who Can and Can’t File for Child Custody

Standing: Who Can and Can’t File for Child Custody The ability to file a legitimate lawsuit for child custody is extremely limited. A person must have “standing” to file, which “relates . . . to the right of the party to have the court adjudicate a particular dispute.”[1] You must have some vested interest in something before you can even ask the court to rule on the controversy. Which Parents Can File? Parents automatically have standing to file for custody against each other because they both have equal constitutional right to the care and custody of their child. They have equal rights to their child unless there is a court order or they have a custody agreement. However, our statutes forbid anyone who is convicted of the following crimes, and which resulted in the conception of the minor child, from filing a child custody claim: first-degree forcible rape, second-degree forcible rape, statutory rape of a child by an adult or first-degree statutory rape. [2] Which Non-Parents Can File? When non-parents have custody, they are usually family-members because they are likely to see the child regularly, care for the child or have a strong bond with the child. It has little to do with which relative asks for custody. Instead, it has everything to do with the behavior of the parents. A non-parent only has standing to file for custody in the event that both parents are unfit or have taken actions that are inconsistent with their constitutional right to the care and custody of their child. This standard is the same as any non-parent. This even applies to grandparents who cannot sue for custody merely by virtue of their status as grandparents, although they may seek visitation in limited circumstances. Who Else Has Standing to File? Proving that the parents are unfit or that they have acted inconsistently with their rights is a huge hurdle. Constitutional rights protect parents who are merely adequate, or parents who don’t do a good job of parenting. But if the non-parent proves the parents are unfit or behaved inconsistently with their rights, our statutes set out a very broad list of potential custodians: “Any . . . other person, . . . claiming the right to custody . . . may institute a . . . proceeding for the custody of such child. . .” [2] But the non-parent cannot be a stranger to the child. He or she...

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What Do All Those Child Custody Labels Really Mean in NC?

What Do All Those Child Custody Labels  Really Mean in NC?

What Do All Those Custody Labels Really Mean? Physical Custody By Amy A. Edwards  See also – Legal Custody Physical Custody In this article, we focus on physical custody and visitation.Our state deems physical custody to mean “the physical care and supervision of a child.” NC Gen. Stat. §50A-102(14). The NC Child Support Guidelines identify primary physical custody as the custody a parent has when he or she spends 243 overnight visits per year with that child. The other parent has secondary physical custody because he or she has 122 or fewer overnights. In that case, child support is the same amount no matter what the custody schedule is. But if a parent has 123 or more overnight visits per year, a different calculation is used. Depending on the exact number of overnights per year, the child support obligation changes on a per-day basis. Physical or Legal Custody? The Guidelines are careful to note that primary physical custody is determined without regard to whether a parent has primary, shared, or joint legal custody (decision-making custody), which is the right to make significant long-term decisions, such as a child’s religious training or the school a child will attend. Contrast that with physical custody, which involves the day-to-day decision-making such as what bed-time is best or how much time a child may spend using social media on a school night. Visitation With a Child Our state fails to clearly define visitation, stating that: Unless a contrary intent is clear, the word custody shall be deemed to include custody or visitation or both. The Court of Appeals wrote that “Visitation privileges are but a lesser degree of custody. Thus . . . the word custody . . . was intended to encompass visitation rights as well as general custody.” NC Gen. Stat. § 50-13.2(b1) But the statute specifies who cannot have visitation. If a person conceived a child by acts of various sexual assault laws, he is not entitled to visitation rights. On the other hand, grandparents may file a case visitation, not custody of any sort. However, they may seek visitation only if there is an on-going custody battle already pending in court. This avoids the significant stress and cost of litigation which could otherwise be inflicted upon the parents by a third party. What About Technology?  Judges in North Carolina may award “electronic communication” with a parent. To allow a fluid and meaning as technology changes, the law envisions “contact, other than...

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What Do All Those Custody Labels Mean? Legal Custody

What Do All Those Custody Labels Mean? Legal Custody

What Do All Those Child Custody Labels Really Mean? (Part 1 of 2) This article focuses on legal custody. Parents will fight tooth and nail about what kind of custody each of them should have. They are extremely concerned about the term custody. There are many parenting labels including visitation, joint custody, sole custody, physical custody and legal custody. Our state statute doesn’t help much. In fact, it probably creates more confusion. NC Gen. Stat. §50-13.1(a) states: Unless a contrary intent is clear, the word “custody” shall be deemed to include custody or visitation or both.” However, our case law and the NC Child Support Guidelines do give us more details about those labels. I’ve tried to avoid legalese, but some of it is inevitable. Our Changing Values  Unlike some states, our state law doesn’t start by assuming that any particular type of custody will exist. But a few years ago, it came just shy of it when the state policy was written to promote “child-centered parenting . . . and encourage . . . court practices that reflect the active and ongoing participation of both parents in the child’s life and contact with both parents when such is in the child’s best interest…” NC Gen. Stat. §50-13.01. This was significant because it wasn’t too many years ago that courts almost automatically gave moms custody of young children. The now debunked law of traditional custody, called the Tender Years Doctrine, assumed young children of tender years should be with their mothers if at all possible. Now, if either parent requests joint custody, the court is legally obligated to consider it. NC Gen. Stat. §50-13.2(a). Legal Custody (Parenting Decisions) Legal custody is decision-making custody, the right to make significant long-term decisions that impact a child’s life and welfare, such as a child’s education, health, medical care, discipline, and religious training, to name a few. Contrast that with physical custody, the day-to-day decision-making such as what bed-time is best or how long a child may spend on social media on a school night. There are three types of legal custody. Joint Legal Custody The trend these days is to award joint legal custody to parents, meaning that both parents equally share the decision-making. Ironically, when parents share joint custody, neither parent can veto the other, so neither parent really has any more rights to make a decision than the other. But, the system of checks and balances provides some incentive for decent behavior. If one parent acts badly or makes poor decisions,...

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Grandparent Rights in North Carolina

Grandparent Rights in North Carolina

Grandparent Rights in North Carolina There are many reasons grandparents (GPs) have their grandchildren living with them. Parents of the children may be deceased or seriously ill, or other times, unwilling or unable to care for their children themselves.  When parents have difficulties, such as substance abuse or significant mental health problems, Child Protective Services (CPS) may intervene in a family crisis. The court may then place the children with the GPs temporarily until the court makes a final decision. Courts seek placement with family members if possible, instead of placing them in foster care. When GPs choose to participate in a case of that nature long-term, a judge may give GPs custody or guardianship. Guardianship is generally granted in CPS cases, not in private child custody cases. Guardianship is a very secure type of authority over a child and, unlike child custody, it is extremely hard to change based on any future circumstances. It is a difficult for GPs to straddle the line between helping the parent become a better parent when they are unwilling or unable to do so, and protecting the children. They face a conflict of interest or even guilt because love both their own child, and their grandchildren. This is rarely a choice GPs want to make, nor do they usually expect to be functioning as parents at retirement or other stage of life after being empty nesters. If CPS is not involved in the family’s lives, GPs might seek custody. The law does not give them much in the way of special rights when they seek custody of their grandchildren. They have the same heavy burden of proof as any other non-parent seeking custody. Courts require a heavy burden of proof because parents have constitutional rights to the care and custody of their own children. GPs, or any non-parents, must prove the parents have acted inconsistently with their protected status as parents. GPs cannot seek visitation with a child unless there is a pending motion to modify custody filed by one of the parents. Only then are they permitted to ask the court visitation rights, and the judge has broad discretion, and may order visitation as deems...

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The Life Span of a Typical Case in Pitt County

The Life Span of a Typical Case in Pitt County

The Life Span of a Typical Case in Pitt County Although the term “typical case” is a misnomer, there are certain goals to be met as you wind your way through the local court process. I say goals because the judge has the discretion to adjust the times as may be necessary in each unique case. Life is messy and court is messier, sometimes not fitting into a specific timeline. We’re fortunate to have an official Family Court in Pitt County, staffed with three individuals. They keep the process moving along, by means of local court rules, the development of certain standardized forms to use in routine administrative matters and expedited communication with the judges concerning the most efficient way to handle issues that crop up as the case moves forward. The court expects the case to be resolved within a year if possible. Phase One: File the Lawsuit A family law case is filed at the courthouse by a Complaint, followed by an Answer and Counterclaims in response, and other filings. This process of putting the court and the other party on notice of what relief each party seeks can take up to 6 months after the case is filed. In the meantime, the court might hold hearings on temporary (until the case is finished) child custody, child support or alimony within 2 months after the case is filed. The parties might also choose to use discovery, which might require a deposition, paperwork to be exchanged, or written answers to specific questions by the other party. Discovery by one or both parties can easily take 2-3 months. The party who files for equitable distribution, the division of marital assets, first must complete a very detailed listing of assets and debts called an EDIA, and the other party then files his or her version. This process takes at least 4 months. Phase Two: Negotiation and Mediation Although clients usually know what property and debt there is, and the income of each party, the attorneys don’t really know until he or she reviews the actual evidence (the tax returns, pay statements, self-employment, etc.). Once the attorneys have a general idea of the scope of the marital estate and what the actual disputes are, they can each then decide the best strategy to use. Another fundamental task is to figure out whether the parties already agree on certain matters, such as...

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The History of Moms and Child Custody Laws in NC

The History of Moms and Child Custody Laws in NC

The History of Moms and Child Custody Laws in NC By Amy A. Edwards The subject of whether moms have some advantage in child custody cases is a much-debated topic among family law attorneys, as well as the parents who later become clients in child custody battles. The U.S. Census Bureau records indicate that only about 17% (1 in 6) of the custodial parents are fathers.[1]  Why does that happen? There isn’t a simple answer. But a brief history of the child custody laws in North Carolina gives us a context, telling us how we got here in the first place. Where It All Began: Tender Years Doctrine Imported from England, our courts used what was called the “Tender Years Doctrine” in child custody cases. It was a built-in default rule called a legal presumption, meaning the mother was always presumed to be the most appropriate parent to have custody unless there was a reason justifying otherwise. The NC Supreme Court in 1973[2] defined it as follows:   “It is universally recognized that the mother is the natural custodian of her young. . . If she is a fit and proper person to have the custody of the children, other things being equal, the mother should be given their custody, in order, that the children . . . may have the advantage and benefit of a mother’s love and devotion for which there is no substitute. A mother’s care and influence is regarded as particularly important for children of tender age and girls of even more mature years.” Marital Status Marital status between the parents did (and still does) matter. Historically, an unmarried mother had exclusive sole custody, including whether to place a child for adoption. If an unmarried mother decided to place the child for adoption, the father generally had no rights because there was no “legal father.” Although that is not currently the law in adoption cases, there are still significant differences between the rights and obligations of married fathers and unmarried fathers. Current adoption laws for unmarried fathers remain controversial among those in the legal profession. An excellent discussion of this topic is found in Rosero v. Blake.[3] Where Did the Tender Years Doctrine Lead? In 1977, the state abolished the Tender Years Doctrine by statute.[4] Instead of defining custody as a right exercised by one parent over another, the new statute required judges to rule based...

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