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Is Your Custody Order Out of Date?

Is Your Custody Order Out of Date?

Is Your Custody Order Out of Date?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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Mudslinging in North Carolina Child Custody Cases

Mudslinging in North Carolina Child Custody Cases

Mudslinging in North Carolina Child Custody Cases According to www.dictionary.com, mudslinging is “an attempt to discredit one’s competitor, opponent, etc., by malicious scandalous attacks.” In North Carolina, a no-fault divorce means that the only reason you need for a divorce is a one year separation. Division of marital property is generally an equal division, and the only type of fault the court will entertain is financial fault related to assets and debts. While marital fault isn’t required for alimony, it is specifically listed in our state laws as a defense and in some cases the sole reason alimony is or isn’t awarded. While the law does not call it fault or marital fault, the behavior of parents becomes front and center in a child custody case. There are rules of evidence, rules of procedure, and local rules for each court, and the law itself. However, a judge has the authority in his or her discretion to hear almost anything if it is relevant to a child’s welfare. A parent’s judgment and fitness can be demonstrated by a wide range of events. Is Mud Slinging Inevitable? Probably, unless you choose alternative dispute resolution. See more about in the last paragraph of this article. Based on my experience, I don’t think the majority of people truly want to sling mud at the beginning of a case, although they are often hurt and angry. They usually just want to get a custody agreement as quickly as possible at a reasonable cost and move on with their lives. But as litigation takes its course, the allegations of bad behavior operate like the threat of nuclear weapons. When one side starts to pile them up and test them, the other side takes offense and acquires his or her own stockpile and begins to test them. Many cases settle through negotiation and mediation but when they don’t, the slinging accelerates rapidly thereafter. By the time a child custody case reaches the courtroom, mudslinging seems inevitable regardless of whether a parent is trying to avoid mudslinging or be the one slinging. Some end up doing so if only because they feel a response to the other party’s allegations is necessary. The Down Side of Mudslinging No parent who testifies is without sin. By definition, the very nature of your past relationship is intimate. When you begin dredging up things from the other person’s past, there will always be a response which will usually include your deepest darkest secrets as well. Fault-based alimony trials can be intense but the worst case scenario is a long and vicious custody battle. In the worst...

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5 Things NC Courts Must Consider if a Parent Wants to Relocate With the Kids

5 Things NC Courts Must Consider if a Parent  Wants to Relocate With the Kids

Five Things NC Courts Must Consider if a Parent Wants to Relocate With the Kids When one parent wants to move out-of-town or out-of-state with the kids, the stakes are instantly higher. There are fewer options to compromise on the visitation schedule. School-age children generally need to live primarily in one place or the other, at least when school is in session. If parents live locally, they might have the alternating weekend schedule and a Wednesday night when they do not have the upcoming weekend, and any other times by mutual agreement. But when one lives far away from the other, there are fewer ways to arrange the schedules so that both parents can remain actively engaged. A pie can only be cut in so many slices. As many judges will tell you at the end of custody cases, these difficult decisions are the ones that keep them awake at night. This is especially difficult when there are two great parents, both of whom have a strong bond with their child. In all child custody cases, North Carolina law requires a judge to consider what is in a child’s best interest, to live primarily with mom or dad. When one parent seeks to move, and the other wants to remain, the judge must consider five factors [1]. In other words, the judge’s written order must include the answer to each of the five questions when making the decision of what is in a child’s best interest. At first, these questions seem simple but once you add the circumstances of each family, they are not as simple as they first appear.   #1        What Are the Advantages of the Move for the Child? Will there be any improvements for his or her life if the child relocates? This is an argument parents make when the two locations are very different. For instance, when a child lives out in the country, will he or she benefit from living in a big city? If there are already connections to the new area, does that include grandparents who are willing to assist with childcare? Does one location offer better medical care for a child who suffers from serious medical problems? Is a gifted child likely to achieve his or her aspirations if given unique opportunities available somewhere else?  #2        What is the Parent’s True Motive for Relocating? People move for a variety of reasons. Perhaps...

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Can I “Give Up My Rights” as a Parent?

Can I “Give Up My Rights” as a Parent?

Can I “Give Up My Rights” as a Parent? Especially when child support is pending, some people mistakenly think they can avoid paying support, or avoid the other parent seeking visitation, if one parent surrenders parental rights. Because parents have legal duties to their children, and because various rights as next of kin flow from parents, there are very few occasions when “giving up” parental rights is legally possible. Courts are extremely hesitant to legally erase a parent from a child’s life unless there is another adult stepping up to legally assume that role. Making sure the parent is in fact the parent (maternity and/or paternity and/or legitimation) is a legal determination, and this article assumes these designations have been made. Duties and Rights of Parents Parents naturally have constitutionally protected rights to the care and custody of their children. So long as they meet their basic responsibilities as parents, the state has little say about their parenting so long as the children are adequately cared for and safe. Parents have a legal obligation to support children or pay child support but there are other legal benefits to which children are entitled. Children, both natural and adopted, have rights such as social security death benefits, military benefits rights, and legal claims for wrongful death of parents in appropriate cases, and inheritance rights, to name a few. Children have legal benefits from a parent even if that parent fails to pay child support or is a parent in name only.   How Are Rights Given Up? Choosing not to pursue visitation with your child is quite different from surrendering your legal rights as a parent.  One example of surrendering parental rights is found in North Carolina’s safe surrender laws, for infants seven days old or younger. Parents who would otherwise abandon an infant are given legal protection from criminal prosecution if they leave the infant with an appropriate agency or individual, such as a social worker, law enforcement officer, or an emergency medical service worker. NC Gen. Stat. 7B-500 et seq.  A parent can give legal consent to allow the NC Department of Social Services (DSS) to facilitate an adoption by a step-parent if the other parent has remarried and he or she desires to adopt, or adoption by a third party. The state then assigns new parents who legally assume the rights and duties of parents. If only one parent consents to...

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