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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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Is Your Custody Order Out of Date?

Is Your Custody Order Out of Date?

Is Your Custody Order Out of Date? When it comes to custody cases, most parents usually either sign a separation agreement, sign a consent order (order by agreement) or they go to court and have an order entered by the court after the trial. The drama dies down and hopefully life goes back to normal, at least as normal as things can get after a dispute of this nature. Life changes. As the years pass, children grow, parents get married or remarried and maybe a few more kids are added along the way. Especially when parents are young, they become more mature. Once the threat of on-going court battle has subsided, parents may stabilize as co-parents and begin to trust each other. The best parents simply do what needs to be done. They might not rely on the custody order after a couple of years because they develop a co-parenting routine. As Time Goes By . . . Assume you and the other parent reach an agreement about your 4 year old son. It calls for him to be with you every other weekend from Friday at 6:00 p.m. until Sunday night at 6:00 p.m., every other Wednesday night, and two weeks during the summer. For a number of reasons, when your son is 6 and starts school, both of you agree it would be in his best interest to live with you and reverse the visitation schedule. This works great for years. What’s The Problem? The problem is that the old custody order remains in effect as is unless and until it is changed, or it “expires” when a child reaches the age of 18. Now assume that your son is 11, and the other parent suddenly tells you he or she will now be going back to the court-ordered visitation schedule, and your son will be staying there full time until further notice. You rush home, dig up the custody order, blow the dust off and see that it only gives you visitation every other weekend and Wednesday nights. From that messy situation, it is obvious you have a real problem. If the order had been updated, this problem could’ve been avoided. When you no longer agree with the other parent, you risk being held in contempt of court if you fail to abide by the custody order. Ultimately, a judge has the ability to enforce the order by whatever means is necessary,...

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Ex Parte Orders: When Will I Have My Day in Court?

Ex Parte Orders: When Will I Have My Day in Court?

Ex Parte Orders: When Will I Have My Day in Court? The Courts and due process rights in the United States Constitution are built upon the right of each person to a fair trial. Fundamentally, a person who is served with a lawsuit has the right to respond in writing, by testimony and by evidence offered during the trial. Both parties may exercise the right to file motions asking the court to do something, seek documents in the possession of the other party (called discovery), and have an attorney issue a subpoena compelling a witness to testify or provide evidence to the court. The law gives each person his or her day in court. Exceptions to the General Rule While this holds true with family law cases, there are times when there is an extreme emergency serious enough to warrant the court entering a temporary order based only on one side of the story. If you’ve been in court maybe you’ve heard the term ex parte but no one ever explained it. It is a Latin term that means something takes place based on only one side of the story. In this context, it means the court makes a ruling without the other party being present. EPOs are generally disfavored in court. The judge must weigh the seriousness of the allegations and decide whether they justify delaying the due process rights of the other party. Judges take the facts of each individual situation into account on a case by case basis. There is no “one size fits all” approach to deciding whether an EPO is justified. For example, when a spouse or other family member attempts to cause bodily injury to the other, or intentionally causes bodily injury to him or her, the court might enter an ex parte order (EPO) in the form of a domestic violence order. When the judge grants the EPO, it is served on the other party who must obey the order even though he or she didn’t have an opportunity to tell his or her version of what happened. But, he or she will be entitled to his or her day in court shortly. How Does the Ex Parte Order Play Out? If someone is served with an ex parte order, time is of the essence. An EPO is usually served with several documents, and includes notice of the date and time for the trial. People are often upset because there is a hearing date...

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Collaborative Family Law: Are You Both on the Same Page?

Collaborative Family Law: Are You Both on the Same Page?

Collaborative Family Law: Are You Both on the Same Page? In the traditional setting of court, the parties are adversarial. This means they are on opposing sides of an issue, each competing for a ruling from the judge. Court tends to be a win/lose scenario. Instead of being adversarial and working against each other, the objective for both parties in Collaborative Family Law is to find a win/win solution to their dilemmas. The parties collaborate in an effort to create the best settlement they can. All four people, both parties and both attorneys, brainstorm in a series of what are called four-way meetings. Because the parties aren’t adversarial, the attorneys and parties discuss things among themselves in a civil manner during the four-way meetings. There is no cross examination. Instead of the courtroom, they usually meet in an office of one of the attorneys. How Does Collaborative Family Law Work? Collaborative Family Law (CFL) is an alternative dispute resolution authorized by the NC General Statutes. It is used only by the agreement of both parties and can be used for almost any type of family law dispute, including child custody and support, alimony, and equitable distribution of marital assets and debts. The attorneys and their clients sign a CFL pledge. In traditional family law cases, the spouse with more money to spend sometimes drags out the process forcing the other spouse to settle because they can’t afford to go to court. The CFL pledge includes a commitment not to “starve out” the other party. If either party decides to litigate (i.e., go to court), the CFL process ends and both parties have to hire new attorneys. This a built in deterrent for starving out the other party. However, the parties can include in their pledge an agreement to use mediation or arbitration if they can’t reach an agreement. By doing that, their attorneys can represent them throughout all three processes, CFL, mediation and arbitration, if necessary, never going to court.  Am I Protected by My CFL Attorney? Yes. Attorneys facilitate the agreement meaning the parties take an active role in the case. If someone suggests a course of action that is not feasible or fair, the attorney advises him or her against it. Both attorneys meet with both clients in four-way meetings. But each attorney also meets with his or her client privately at his or her office. In fact,...

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