Child Custody Evaluations in North Carolina: A Double-Edged Sword
Child Custody Evaluations in North Carolina: A Double-Edged Sword By Amy A. Edwards The vast majority of child custody cases are settled out of court. Parents or custodians sometimes negotiate on their own with attorneys to reach an agreement. Another way an agreement in custody case can be resolved is by mandatory custody mediation where a neutral mediator and both parents meet in an effort to create an agreed-upon custody order. The cases that fall outside of the vast majority and are litigated in court are the ones that are most complex. For example, it is difficult to “split the baby” when parents live in different parts of the country and both want to have primary custody. That usually means that one parent will have most of the school year with the child or children, and the other will have most of the summer vacation. These are the types of cases in which parents often consider having a child custody evaluation performed. What is a Child Custody Evaluation? Performed by a psychologist, a CCE results in a written report that is provided to the court. The psychologist evaluator will then testify as an expert witness at the child custody trial. The exact details vary depending on what the expert is appointed by the court to do. But the evaluator usually administers psychological testing, such a personality test called the MMPI-2, for each parent or guardian. The test results identify the strengths and weaknesses of each parent. The evaluator typically reviews the medical and mental health records of the family members, meets with the family members separately and together to interview and observe them, and contacts third parties such as teachers or third parties who reside in the home. The evaluator might even do a home visit to each parent’s residence. Based on all of this, the CCE report will make recommendations about what is in the best interest of the child or children. What Does the CCE include? The CCE report will usually give the judge insight on what the child actually needs, as well as explain each parent’s parenting styles. To over-simplify it in an example, if a child suffers from anxiety, he or she might need a very structured routine and one parent might be more decisive than the other. There is usually a list of these sorts of conclusions, followed by recommendations, which almost always include a course of mental health treatment. That treatment must be referred to a third party professional because the evaluator psychologist is used only for court and is prohibited from treating any of the family members. Another recommendation might be for the court to assign a parenting coordinator, who is authorized to make minor decisions when the parents dispute what the custody order requires them to do. Recommendations are otherwise based on each family’s disputes and needs. These might include the frequency of phone calls with each parent, or who is better suited to make medical decisions if the child has serious medical problems. What are the Advantages and Disadvantages? If the report recommends a schedule or a parenting plan that benefits you, congratulations. You now have a built-in expert witness testifying on your behalf. However, if the report favors the other parent, you are at a definite disadvantage. Overall, judges...
read moreWhat if My Spouse Won’t Give Me a Divorce?
What if My Spouse Won’t Give Me a Divorce? By Amy A. Edwards On a regular basis, I hear people talking about a friend or someone they know who is stuck in a bad marriage but they can’t do much about it because his wife (or her husband) won’t give that person a divorce. In North Carolina, that is not how it works. Separation and Divorce In our State, if someone wants a divorce, the law requires a separation of at least 12 months. For that requirement, all the law requires is that a husband and wife live in separate residences and at least one spouse (not both) must intend for the separation to be permanent. The law often refers to this as a permanent separation. Otherwise, simply living apart without at least one spouse intending to permanently separate would include happily married people who simply live separately for long periods of time, such as military spouses. No agreement to separate is necessary. North Carolina doesn’t require any paperwork or consent for someone to be separated. If a spouse is unhappy in the marriage, he or she can simply leave at any time although there are a number of reasons doing so without legal advice can be a bad idea. For example, a spouse who leaves the residence risks committing abandonment, which is marital fault in alimony cases. It can also create a messy dispute over how often each parent sees the children unless there is an agreement before the separation. But technically, no one is prohibited from leaving the home. Signing Paperwork Another reason people think that a spouse won’t give him or her a divorce is because they need the other person to sign something. That is also not the case in North Carolina. One type of routine paperwork people often sign is more for convenience than consent. When a lawsuit (also known as a claim) for a divorce is filed, the other person must be “served” with a copy of it and a summons. Rather than having a sheriff serve someone by handing the paperwork to him or her, that person can choose to sign an “acceptance of service” instead. If the spouse does not sign the acceptance of service, it just means that the sheriff will serve the spouse by handing him or her a copy of that paperwork instead. But the spouse doesn’t have to give consent for the divorce or consent to be served. Another document that spouses frequently sign is a separation agreement, which is a contract that settles all of the marital claims including equitable distribution of marital property, financial support and/or custody of the children. It is usually more convenient to sign a separation agreement settling your case than to go to court. But no separation agreement is required in order to get divorced. In North Carolina, a spouse can file a claim for divorce on the day after the one-year separation ends, period. Your spouse does not have any say in whether you file a claim for divorce. As long as you meet the requirements for filing a divorce, it is your right to do so. While you don’t have to divide your marital property or figure out what to do about alimony before the judge signs the divorce decree,...
read moreHanging on a Dream: One Woman’s Adoption Story
Hanging on a Dream: One Woman’s Story of Adoption By Diane Gray The dinner table congers up so many memories of my childhood. It was the place my family would all be together to talk about the events of the day, laugh and share stories as we ate our meals. While sitting at the table, I would often look at my mom, dad and adoptive sister and think that I didn’t really look like any of them. I knew I was adopted but there was this nagging feeling that I was missing something, I was lost and I would feel sad for reasons I never understood. In my teen years I would still get these uneasy feelings of sadness. I would ask my mom about my adoption but she would never give me any information no matter how hard I would press her for answers. I was desperate to find out. It was important for me to know who I am, where do I come from and who do I look like. As a teenager, I didn’t have the resources or knowledge to even begin to know how to get the answers I was looking for. It was during these years that I would dream about a big family and that I had several siblings. This dream never went away and stayed with me until the age of 63. I’m going to let you in on a few issues facing adoptees. First, often times we may have overwhelming feelings of loss and grief but we don’t know what that loss and grief really is. These feelings can often lead to a loss of self-esteem. Why was I given up? What is wrong with me? Was I just not good enough? I was still hanging on a dream of a big family. The second issue is guilt which can also be connected with loss and grief. Typically, adoptees don’t want to be disloyal to their adoptive parents. These are the very parents that loved them and raised them. These feelings of guilt often occur when an adoptee may decide to search for their biological mother and father. The search for their self-identity is especially difficult for teenagers. They have no genetic information which may lead to a genetic gap. I was still hanging on a dream of a big family. Relinquishment which is the “politically correct” reference to a birth mother “giving up” her child for adoption. There are many reasons she may do so. She may have been young when she gave birth. She may not be financially able to care for her child. Perhaps the birth of a child has interrupted her education or career path. There’s thousands of reasons. An adoptee can have separation anxiety issues as a result of being relinquished. As a child I don’t really think this affected me but as I grew older, I was able to see signs of separation anxiety throughout parts of my life. It is common for adoptees to feel they are never good enough whether it’s while growing up and in school. It is also common for adoptees to not feel good enough during their careers. An example might be being passed up for a promotion. I was devastated when I got passed up for a promotion when...
read moreOn 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 time, pickup, or delivery, sharing of vacations and holidays, the method of pickup and delivery, transportation to and from visitation, participation in child or day care and babysitting, bed time, diet, clothing and recreation. Also included is the right to make decisions on before-school and after-school activities, extracurricular activities, discipline, health care management, phone contact, education, passports and participation in visitation, including significant others or relatives. PCs can’t be involved with finances, nor can a PC provide any professional services or counseling to anyone in that family. PCs may also prepare a court report if he or she believes the current custody order is not in the child’s best interest, a party is not complying with the order, the PC encounters issues that he or she is not qualified to address, or the PC wants to end his or her appointment or make changes to the appointment order. The PC...
read moreGrey 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 dispute the choice of a retired spouse not to charge adult children for work-related childcare of grandchildren. Spouses can disagree about the timing of a spouse electing to receive Social Security retirement payments, which vary in amount depending on what age the person is. Life insurance becomes more important when dealing with older spouses, particularly if a spouse is depending on alimony that ends if the other spouse dies. When someone retires, they often lose the term life insurance that is offered by many employers. Another dilemma can arise when the policy was purchased when the insured spouse was young because the cost of buying that protection now would be prohibitively expensive. Marital Property Divorcing couples may decide that it makes sense to have one spouse stay in the home and “buyout” the other spouse’s share, which might take less time and involve less risk than trying to sell...
read moreDo 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 Obligations? Frustratingly, North Carolina gives us no clear answers to the question of what a parent is expected to do when the child refuses to go with the other parent. At a minimum, parents must communicate with each other about the problem to determine if they can figure out a remedy. If the case reaches the courtroom, the judge will expect both parents to honestly communicate with each other and make reasonable efforts to carry out visitation. The younger the child, the more a parent will be expected to do. After all, it is difficult to stuff a 15-year-old into the car. But the court would probably expect a parent to place a 4-year-old into the car. Judges usually don’t think children should have the ability to dictate what they will and won’t do. They do expect parents to act like parents. What Should Parents Do? My advice to parents...
read moreNorth 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 property, child custody and support or alimony. It must be accompanied by a Summons, the preprinted notice to the defendant, and be served by sheriff, certified mail or by the defendant signing an Acceptance of Service. Consent order. Formal agreement that the parties sign. When the judge signs it, the agreement becomes a court order without the need for a trial. Sometimes the parties must appear in the courtroom for a few minutes for the judge to get their permission to sign the order without a trial. The consent order is enforced exactly the same way as any other order. Contempt of Court. Violation of a court order or refusal to comply with the judge’s request or demand in the court room. A judge has the authority to incarcerate someone for contempt. Custody order. An order that determines legal custody (decision-making custody) and physical custody (visitation schedule) of the parents....
read moreHarassment 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 defendant sent text messages threatening suicide, then that “I invited you to come home time and time again. Take the wrath that comes.” He sent numerous other texts and she feared that he was “coming to kill” her. She became so fearful that it curtailed her ability to work, persuading the Court of Appeals to decide that her case did constitute substantial emotional distress. [4] In another case, the Court of Appeals reminded us that just being harassed isn’t enough. It has to rise to the level of substantial emotional distress. [5] There, the person seeking a DVPO said that the other person made Facebook posts in which “he continues to lie on social media about me[.]” In court, the attorney asked her what the posts had done to her, specifically. She replied that “It’s emotional distress. I can’t live every day wondering what he’s going to do and say on Facebook that’s...
read moreDeployed 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 of time that the deploying parent habitually cared for the child before being notified of deployment.” • Decision-Making Authority Someone granted Decision-Making Authority has a legal right to make important decisions about a child’s education, religious training, health care, extracurricular activities, and travel, but only if the deploying parent is unable to exercise that authority, and only if it is in the child’s best interest. Decision-Making Authority is roughly the same as legal custody. Contrast this with the right to make day-to-day decisions while a child is with a someone who has Caretaking Authority. An order granting Decision-Making Authority must list the specific decision-making powers that will and will not be granted. • Limited Contact The non-parent given Limited Contact privileges has the right to visit for a limited period of time unless the court finds that doing so isn’t in the child’s best interest. Limited Contact rights are given...
read moreWhat Happens to Child Support When a Special Needs Child Reaches 18?
What Happens to Child Support When a Special Needs Child Reaches 18? By Amy A. Edwards Before 1979, North Carolina parents had a legal obligation to support their child if he or she was mentally or physically incapable of self-support upon reaching age 18, the age of majority. There was considerable debate about whether to keep parents’ responsibility in place or end support at age 18. Now, although there aren’t any specific child support laws for children who have special needs, support can be extended to a maximum age of 20 in certain circumstances. Support can’t be ordered past age 20 unless the parent signs a contract saying so. Child Support Law In North Carolina, unless there’s a contract that says otherwise, child support continues after age 18 if “the child is still in primary or secondary school when the child reaches age 18.” In that event, support continues until “the child graduates. . . ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first.” NC Gen. Stat. §50-13.4. Non-Traditional Progress In 2001, forty years after repealing the statute that required parents to support their child if he or she was incapable of self-support, our Court of Appeals made a small step towards helping special needs children when it clarified that special needs children aren’t penalized just because they are not in a traditional high school. John Hendricks had Down Syndrome and attended a special program in a high school that taught “vocabulary and activities of daily living such as how to count money.” When he reached the age of 18, his mom asked the court to end her child support obligation because he wasn’t making satisfactory academic progress towards graduation. He wouldn’t receive a traditional high school diploma. But John’s teacher and school counselor testified that “John’s attendance at school is in his best interests, [and] that he would continue to benefit in the future from the curriculum.” The Court of Appeals held that John was making satisfactory academic progress toward a non-traditional graduation, and it was equivalent to a traditional graduation. Child support would remain in place up to age 20 so long as John made progress in his program. The Court wrote: If John were not mentally disabled but instead was enrolled in a traditional high school curriculum, it is clear support would be continued. To treat a mentally disabled child any differently than a mainstream child in terms of support obligations would be patently unfair, against public policy and not in keeping with the legislative directive. Enforceable Agreements If a parent agrees in an enforceable contract to support a child past the age of majority, the court will enforce it. This is most commonly found in separation agreements when a parent agrees to pay some share of college expenses. A court can’t order a parent to pay for college expenses because the child is an adult but when parents agree to share college expenses in a contract, it will be upheld. It is the same when parents agree to pay support until a certain age. If a parent relocates to North Carolina from another state where 21 is the age of majority, for example, their separation agreement that requires paying until the...
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