Court Archives - Amy Edwards Family Law

On 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...

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...

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...

Does North Carolina Recognize Quickie Divorces? By Amy A. Edwards In North Carolina, parties seeking a divorce must show that at least one of the spouses has resided in the state for at least six months when either spouse files for the divorce. As of the date that a spouse files a claim for divorce, the parties must be separated for at least twelve months. When they separated, at least one of the spouses had to intend for the separation to be permanent. Why Do People Want Quickie Divorces? Besides the obvious desire to be legally single and/or remarry, there are several other reasons people get quickie divorces. There are those who want to get a divorce without the one-year separation, or those who haven’t lived in North Carolina for at least six months at the time the divorce is filed. Another incentive for quickie divorces is the payment of alimony. The deadline for filing an alimony claim in North Carolina is the entry of the divorce decree. If there isn’t an alimony claim already pending when the divorce decree is granted, it permanently expires and can’t be filed again. In other words, someone might try to slide the divorce past the other spouse with the hope that he or she won’t have time to file for alimony. The U.S. Constitution Our Constitution protects citizens with the right to due process of law. The courts only have the right to make rulings (i.e., legal authority) if they have jurisdiction. Without it, the court can’t issue valid court orders or decrees. A party to a lawsuit is entitled to legal notice and an opportunity to be heard and defend himself or herself. This usually occurs by service of the summons and complaint, when a sheriff hands a copy of the paperwork to the defendant, or the defendant signs to accept certified mail. Divorces by Other States When one U.S. state enters a decree, another state must generally accept it as valid. The Constitution requires one state to recognize it, giving it what is called full faith and credit. There are exceptions. North Carolina or any state can reject a decree of another state if that decree was fraudulent or the court did not have jurisdiction (i.e., the defendant wasn’t served with a copy of the paperwork). In other words, if it wasn’t valid in the state that issued it, then...

When Will the Judge Make a Ruling in my Case? By Amy A. Edwards This question comes up all the time. The short answer is that the judge makes a decision in your case whenever he or she makes a decision in your case. Attorneys don’t have the authority to push judges to make decisions in cases. The judges are in control of what happens in court, which includes the time it takes to do things. After a trial, the judge makes a decision on what is disputed in your case, which is called a ruling. The judge signs a written order and the clerk of court “enters” it with an ink stamp that reflects the date. On that date, it becomes legally effective or entered. In the Beginning During your trial, also known as a hearing, the judge probably took notes and/or admitted trial exhibits into evidence. Typical evidence in a child support case for a self-employed person includes three years of personal and corporate tax returns, bank records, credit card statements, invoices and other documents that prove what the monthly business and personal expenses. Then, consider the stack of evidence the judge has from all of the trials that particular week or two, and you can begin to understand why the judge’s ruling may take so long. After the trial is over, the judge will also need to review his or her notes and sometimes obtain a recording of the trial if it was complex or if enough time has passed that it is no longer fresh in the judge’s mind. Behind the Scenes The judge’s day job is to sit in court listing to trials, which leaves only limited unscheduled time to work on a ruling in your case. Judges have a few random days of office time that is scheduled, but not many. Often, the free time a judge might have to work on your case is when some other case that was scheduled for a trial settles or gets continued to a later date. If a two-day trial was scheduled and the parties sign an agreement three hours into it, the rest of the two days might be available to work on your case. Or, the rest of that time might be used to hear a trial that had been scheduled on the waiting list as a “backup” case so no court time is wasted. There is a severe shortage of judges, and the...

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...