Quality, Responsive and Trustworthy Legal Services
We offer clients a strong work ethic combined with prompt and personalized client care.

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...

read more

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...

read more

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...

read more

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...

read more

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,...

read more

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...

read more