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7 Mistakes That Can Hurt Your Child Custody Case​

It can be hard to handle the emotional stress of a separation, especially when child custody is involved. The legal aspects often intertwine with the personal issues that led to the end of the relationship, and arguments over child custody only complicate the situation further. 

Even though custody of a child can involve strong emotions and convictions, it’s important to keep in mind that your actions can have an impact on your child’s well-being and your ongoing relationship with them. Letting negative feelings lead to destructive behavior or poor judgment is a quick way of painting yourself in a negative light before the judge and at a disadvantage in court.

With that in mind, we’ve compiled a list of seven things you shouldn’t do if you want a positive outcome for your child custody case.

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How Do Judges Arrive at Custody Decisions?

It’s good to begin with an understanding of how custody orders take shape. There are two aspects to child custody: legal custody and physical custody. You can share them with the other parent, called joint custody, or split them, with one parent having primary custody.

Legal custody is the ability to make major decisions that affect the child’s life. This includes choices about religion, medical treatments, or schooling. Physical custody defines where the child will live—either split between both parents or with one having primary custody while the other has secondary custody or visitation rights. The breakdown of legal custody and the schedule of physical custody may be called the parenting plan or custody plan.

The “best interest of the child” is what a judge will have to determine when making a ruling on a custody plan. This is a very broad topic, and the judge has a lot of discretion in making a final determination. There are some general factors the judge will consider:

  • Relationships: A child should be able to maintain relationships with people in their life like their non-custodial parent, extended family, and positive influences in their school or community.
  • Development: A child needs support to grow and mature, and those in charge of their care will likely need to nourish them mentally and physically.
  • Safety: An essential part of the decision is keeping children away from harm. Drugs, abuse, domestic violence, or a criminal record could keep one parent from earning custody.

With these priorities in mind, here are seven mistakes that can hurt your child custody case.

1. Refusing to Cooperate or Compromise With the Other Parent

Even though you may have strong negative feelings about your former spouse or partner, one of the biggest mistakes you can make is putting those feelings above the best interests of your children. Refusing to communicate reasonably could make the judge think that your desire to hurt the other parent is greater than your desire to be a positive role model for your child.

Instead, try to keep an open and constructive dialogue with the other side. If emotional factors make it hard to do this, consider hiring an experienced family law attorney who can handle communication for you and provide valuable advice about when to compromise and when to take a stand.

2. Withholding Visitation From the Other Parent Without an Urgent Reason

In general, the court will not look kindly on any attempt to cut off the other parent from seeing their child without the support of a court order. Of course, there are times when you can’t wait for a court order. If the other parent or the environment poses a danger to your child, like if you suspect physical abuse or unsanitary living conditions, then you may have grounds to refuse visitation.

However, such instances are limited to real and immediate threats. Stopping visitation as a penalty for other matters, like missing child support payments, can end up making situations more complicated and put you in contempt of court. You should always consult an attorney before attempting to violate a visitation schedule the court has laid out if it’s not an absolute emergency.

3. Fighting With or Talking Badly About the Other Parent in Front of Your Children

Again, the welfare of your children should be your main concern, which means you can’t afford to drag them into any negativity between you and their other parent. Even if your ex-spouse or ex-partner seems impossible to get along with, it’s important to take the high road whenever you can and conduct yourself in a compassionate and collected manner.

If the other parent refuses to do the same, this could boost your chances with the judge. Meanwhile, if you sink to their level, then you pass up a valuable opportunity to show the court you’re better equipped to look out for your child’s best interest.

RELATED: What Can I Do About Parental Alienation?

4. Exercising Poor Judgment on Social Media

Social media accounts can seem like a private space to vent frustrations and receive support from friends. The reality is that these accounts are public, and anything you post on them could come up in court. Posts that could lead the judge to form a negative opinion about your conduct or your influence on your child can be very damaging to your attempts at a favorable custody ruling from the judge:

  • Pictures of you intoxicated or using illegal drugs
  • Lies or abusive comments
  • Disparaging statements about the other parent

In general, a good guideline is that you shouldn’t put anything on social media that you wouldn’t want on display in open court. However, do not delete something that can count against you if you have already posted it. The post in question may be evidence, and you could face legal consequences for trying to get rid of it. Instead, discuss the post with your attorney, who may be able to prevent it from being admitted as evidence or reduce its impact by reasoning with the judge.

5. Disobeying a Court Order

If you violate the temporary orders or disobey any directions from the court, the judge will take this as a sign of disrespect for their authority, and you could be held in contempt of court. As you can imagine, that won’t help you when it comes time for the judge to decide your case.

When first determining the custody of your child, the judge may order a temporary schedule for custody, or you may sign a consent order for temporary custody. Your options to change it can be limited, and the court will require you to follow the arrangement. Even though it is an agreement, once the judge signs it, it becomes a court order that you must follow.

RELATED: Denied Child Custody or Visitation? Here’s What to Do

6. Not Taking Notes

If the other parent engages in any of the behaviors mentioned in this article, you should bring this to the judge’s attention. But it won’t help if you don’t have a detailed record of the events. In court, terms like “a while ago” and “this one time” don’t carry much weight. If you want to bring an incident to the court’s attention, you should be prepared to state an exact date and time along with as much detail and documentation as possible.

To make this easy, get in the habit of keeping a journal for your custody case. This can be a notebook where you write down events and dates or an app on your phone where you can store notes. Here are some tips:

  • Be Consistent: Take notes during every interaction with the other parent, making sure to write down details if they do something you believe is inappropriate or detrimental to your child’s welfare.
  • Be Cooperative: You can also use your journal to document positive events, such as constructive activities you did with your child during visitation time or how you cooperated with the other parent.
  • Be Comprehensive: Wherever possible, take photos to corroborate your journal and make a note of anyone who was there to witness the events to bring along to family court.

7. Not Hiring an Attorney to Represent You

A child custody and visitation case can feel like a maze of legal paperwork, court dates, and visitation schedules. Missing even a single detail in any of these areas can have a negative impact. Your relationship with your child is too important to risk letting that happen in a child custody case.

To avoid that risk, you should look for an experienced family law attorney who can argue on your behalf in court and keep track of all the various filings, dates, and requirements. An attorney can also use their experience to present your case before the judge in a clear and compelling fashion and communicate with the other side so that personal emotions don’t get in the way of what’s best for your child.

Myers Law Can Help You Understand Your Case

Myers Law Firm has over 60 years of combined experience with family matters, including child custody cases. Our team can look at the details of your unique situation and offer assistance to address your circumstances and meets your needs.

Call us at (888) 376-2889 or complete this brief form to schedule a free consultation.

References

Child Welfare Information Gateway. (2020). Determining the best interests of the child. Washington, DC: U.S. Department of Health and Human Services, Administration for Children and Families, Children’s Bureau. https://www.childwelfare.gov/pubpdfs/best_interest.pdf

N.C. Gen. Stat. § 50-13.1

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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Child Support Issue

Dealing with a parent who refuses to stay current on their child support can lead to plenty of anger and frustration. Sometimes, parents try to handle the problem by revoking visitation rights until the other parent pays the support they owe.

While it’s understandable to try and take any action you can to get the money your children need, preventing the other parent from seeing their children is almost always a bad idea. In this article, we’ll explain why and talk about what you can do instead.

Revoking Visitation Rights Until You Receive Payment Is Risky

While you might see child support and child custody as part of the same big picture, the court views them as separate issues. A parent’s failure to pay child support could eventually factor into a court’s order regarding custody, but failing to follow a child support order has no immediate effect on any other court orders. So, if you try to prevent the other parent from exercising the visitation rights granted to them by a court order, you could be in contempt.

Violating a court order comes with serious consequences. The court can impose additional hearings, fines, make-up visits, child support suspension, and in extreme cases, loss of custody. These long-term ramifications could be much worse for you and your children than missing the few late payments you are fighting to receive.

And you don’t just risk losing the court’s favor when you withhold visitation. The court can also hold you in contempt and even send you to jail for violating the custody agreement. At minimum, a contempt hearing will cost you time and money, and it’s something you should avoid.

But just because you can’t withhold visitation doesn’t mean your ex can fail to pay child support and get away with it. You can force them to pay what they owe or face the consequences, but you need to go about it the right way — with help from an experienced attorney.

RELATED BLOG ARTICLE: What You Need to Know About North Carolina Child Support

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An Attorney Can Help Protect Your Rights and Enforce a Child Support Order

The consequences of violating a court order cut both ways. If your ex refuses to pay child support, they’re in violation, and they risk being held in contempt and receiving fines or even jail time. Your lawyer can bring the unpaid support to the court’s attention and file motions that could cause your ex to face collection measures like garnished wages, a judgment against them, and a suspended driver’s license or hunting license. Best of all, these options will keep you in the court’s good graces and won’t put you in danger of violating a court order.

In cases where you and your ex reside in different states, additional federal laws protect your right to child support. For example, if the child support order was made in North Carolina, where you and your children reside, the North Carolina court retains authority over the matter no matter where your ex moves. The state court has sole authority to amend the order, and only that court’s order is enforceable. The benefit of this provision is that your ex can’t move to another state to escape their child support obligations.

For more detailed information about your options when the other parent refuses to pay court-ordered child support, read our previous blog article on this subject.

RELATED BLOG ARTICLE: What to Do When the Other Parent Won’t Pay Child Support

Myers Law Firm: Helping Parents in Charlotte and Mecklenburg County Collect Child Support

At Myers Law Firm, our family law attorneys are here to support you and fight for your rights during the challenges of a divorce and the accompanying legal matters like child custody and child support. If the other parent owes child support and refuses to pay, we can help you hold them accountable without violating any existing court orders.

For more information on how our family law attorneys can help you, schedule an initial consultation by filling out our convenient online contact form or calling our Charlotte office toll-free at 1-888-376-ATTY (2889).

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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Child Visitation

Watching your child leave for a visitation with the other parent can be gut-wrenching, especially if your child is acting like she doesn’t want to leave you. However, children can get upset at a visitation hand-off for many reasons. While you should always take your child’s safety and welfare seriously, it’s also important that you don’t act out of raw emotion and do something that could get you in a lot of trouble with the court.

Rather than trying to prevent the child from going with the other parent, the right way to address a serious concern is to work with an attorney and file a petition to modify your child custody order. However, before you take that step, it’s important to assess your child’s situation carefully. In this article, we’ll provide some guidelines you can use to do that.

Don’t Automatically Assume Your Child Is in Danger with Your Ex

It’s important to remember that the younger your child is, the fewer tools they have to express and explain their feelings. Depending on their age and level of development, your child may cry because they are anxious, afraid, sad, uncertain, or just tired and hungry. While it can be tempting to assume that your child gets upset at a visitation handoff because they don’t like your ex (especially if that’s how you feel), that’s rarely a fair assumption. Frequently, both parents will make claims that the child is upset when returning to the other parent. Your child might be upset for a variety of other reasons, including the ones listed below.

RELATED ARTICLE: Can I Prevent My Spouse From Seeing the Children During a Divorce?

They’re Mimicking Subtle Cues That You’re Upset

Even if you’re not openly badmouthing your ex, it’s easy to accidentally voice your unhappiness with a visitation schedule or some other aspect of your relationship with them. For example, think about the emotional impact of these statements and gestures:

  • “I don’t want you to go, but your mom says you have to.”
  • “I’ll miss you so much! I’ll be sad all weekend without you.”
  • “I’m so glad you’re home! I can’t stand being away from you.”
  • You refuse to leave the car or make eye contact with your ex during the hand-off.
  • You’re tearful or tense every time you drop your child off.
  • You cry in relief when your child returns home.

Children are great observers, but they don’t have the sophistication to understand the practical aspects of divorce, which means they’ll look to you for guidance. When you seem sad, anxious, or hurt at a visitation hand-off, they may pick up on your emotional state and assume that they’re not safe with the other parent or that you’re upset with them for leaving.

They’re Trying to Validate Your Importance

Sometimes, children will feign sadness to make you feel better. They might know you feel sad or conflicted about their time with their other parent. Because of this, they might feel uncomfortable happily running to their other parent and think that you’ll feel better if they seem sad to leave you.

Change Is Difficult for Kids

Changes and transitions can be hard for children regardless of their age. Think about how difficult it was for you to switch schools or move to a new neighborhood as a child. No matter how positive your child’s time is with their other parent, the process of leaving you and your home might bring about anxiety.

They’d Rather Do Something Else

As children age, their priorities shift. Rather than spend time with their parents, they may prefer to hang out with friends. They may also increasingly want to avoid chores and other family obligations, and they may resent it when those obligations cause them to miss out on something that they’d prefer to do. If a visitation schedule conflicts with a child’s social or extracurricular schedule, either parent can experience pushback from the child.

Assess Your Child’s Unhappiness With Help From a Professional

When your child is resisting visitation, do your best to assess the situation impartially. In most cases, you need to encourage the child’s relationship with the other parent, even if it’s difficult for you to do so. Try not to get into discussions about the other parent that may paint the other parent in a negative light because of your own view. Instead, help make the transition positive and be encouraging.

RELATED ARTICLE: 7 Mistakes That Can Hurt Your Child Custody Case

If you need help with this process, consult a trained counselor or a child custody lawyer. A professional can help you identify the core issues your child is having with visitation and work with you to build a comprehensive plan that protects your child’s emotional and physical health.

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If You Have Real Concerns About Your Child’s Safety, Contact a Custody Lawyer Immediately

Your child’s safety is your top priority, and you have legal options if you genuinely believe that visitation with the other parent poses a threat to your child’s safety and well-being. First, if you believe your child is in imminent danger, you should call 911 and inform the authorities.

After that, contact a child custody lawyer. A lawyer can work with you to quickly create an emergency response plan. This plan might involve a protective order against an abusive parent, a temporary modification in the visitation schedule, or other protections for your child.

What Should I Do If My Ex Is Interfering With My Visitation Rights?

North Carolina law recognizes that children typically benefit from having meaningful relationships with both parents and establishes many legal protections for both parents’ custody rights. If you believe that your ex is interfering with your visitation rights or attempting to damage your relationship with your child, contact a child custody lawyer immediately. If the other parent has violated the court’s child custody order, it can lead to civil or criminal contempt of court charges, and it also might merit a change to your existing parenting plan or child custody order.

You Can Modify the Visitation Schedule if There’s Been a Significant Change in Your Family’s Circumstances

As your child’s needs change, so can your visitation schedule. If it looks like your child has outgrown their existing child custody plan, or if your family’s circumstances have changed, it’s time to consult an experienced family law attorney.

RELATED ARTICLE: Use These 5 Tips to Make a Parenting Plan That Works

Sometimes, a lawyer can help you negotiate a new parenting plan with your ex outside of court. However, if this doesn’t work or isn’t appropriate due to your circumstances, your lawyer can help you file a petition to modify visitation.

Myers Law Firm: Child Custody Lawyers for Parents in Charlotte and Mecklenburg County

Myers Law Firm is one of Charlotte’s leading family law and child custody firms. If you need help with a child custody issue, contact us to schedule your initial consultation. We’ll listen to your story and help you understand your legal options. To request your consultation today, simply complete our online form or call us at (888) 376-2889.

References

Definitions, Article 1, Chapter 50, N.C. General Statutes. § 50-16.1A. (2015). Retrieved from http://www.ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_50/GS_50-16.1A.pdf

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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Five Tips for Creating a Parenting Plan

Child custody cases in North Carolina don’t always have to go to court. Some parents settle child custody issues by working together in voluntary agreement to create a parenting plan. This plan establishes a schedule for time-sharing and explains both parents’ duties and responsibilities when it comes to raising the child or children.

While carefully-crafted parenting plans can make life easier and more peaceful for both parents and children, creating a good one can be hard work. A successful parenting plan needs to be detailed, thorough, and thoughtful. In this article, we’ll provide five tips for creating a parenting plan that serves your child’s best interests and stands the test of time.

1. Make Sure Your Parenting Plan Is Detailed

Even if you and the other parent have a cordial relationship and you feel like everything is going smoothly, it’s important to make sure your parenting plan discusses the specifics about who the child stays with and when.

Think of your parenting plan as your failsafe. If you and the other parent keep getting along, that’s great, and you can share time with your child based on informal agreements and the child’s wishes. But if disagreements start to come up — and it’s easy for that to happen, even among parents who aren’t divorced or separated — then you’ll know you can fall back to your parenting plan to provide guidance.

2. Plan for Lots of Different Scenarios

If your parenting plan only covers “business as usual” situations, then it won’t help you once the day-to-day roller coaster of real life with children kicks in. It’s important to make sure your parenting plan anticipates lots of different scenarios that can arise.

For example, what happens if the other parent has an important event come up during their parenting time and wants to have someone you don’t know babysit? In that case, you might prefer to have the child back with you until the other parent returns. If your parenting plan doesn’t discuss situations like this, then you won’t have much ground to stand on.

3. Be Ready to Compromise

There’s a well-known saying that goes, “A really good compromise is one that leaves both parties equally unhappy.” This might be a pessimistic way to look at negotiation, but there’s truth to it, too. The core principle of compromise is you have to give up things you want in order to get things that you really want, and that’s true when working with the other parent to create a parenting plan.

RELATED: 7 Co-Parenting Tips That Can Prevent Back-To-School Headaches

When you’re negotiating the details of your parenting plan, remember that this process is about your child’s best interests first and foremost. It’s not about what’s best for you. And keep in mind that most children do best when they’re allowed to maintain a strong relationship with both parents. To get there, you’ll probably have to agree to some things that don’t fit with your ideal picture of your life with your children, but so will the other parent.

As long as you both let your child’s well-being and emotional health take priority over any issues between you, your parenting plan should be able to strike a balance that works for everyone.

4. Give Your Plan Room to Grow

The one thing you can count on with children is that they’re going to change. That’s why a parenting plan that’s too rigid and rests on everything staying the same is destined to fail in the long term.

Rather than try to draw up a plan that will perform the impossible and anticipate how your life and your child’s life will have changed in a few years, it’s fine — and sometimes even ideal — to build re-evaluation into the plan. You can include specific provisions that require you and the other parent to try alternatives before returning to court. This might include choosing a mediator or therapist who can help with transitions and facilitate the conversations that need to happen when updating the plan.

5. Hire a Lawyer to Draft Your Parenting Plan

An experienced family law attorney should know all the details your parenting plan needs to succeed in the long term. Besides their knowledge of the law, your attorney should have plenty of real-world experience with what works and what doesn’t when it comes to drawing up a forward-thinking, flexible, and thorough parenting plan.

You don’t want to end up going to court every six months over disagreements about your plan because it wasn’t designed to last, and working with a lawyer at the beginning of the process is the best way to avoid this. A good lawyer can also move quickly to protect your rights if the other parent refuses to compromise or starts violating the terms of the parenting plan.

Let us help you.

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Myers Law Firm Can Help With Parenting Plans and Child Custody Issues in North Carolina

At Myers Law Firm, we understand that child custody cases are difficult for both parents, so we approach every family law case with compassion and understanding to search for solutions. While we excel at negotiating to find constructive compromises, we’re always prepared to stand up in court and fight for your rights with an aggressive approach if that’s what it takes to serve your child’s best interests.

The attorneys at Myers Law Firm have experience handling all the family law issues that surround the end of a marriage, including alimony, child custody, child support, property division, and divorce. We’re here if you need help. To get in touch with us, call our offices at 888-376-2889 or fill out our online contact form.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

Contact Myers Law Firm

We are committed to continuing to serve our clients’ legal needs

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We are able to meet with clients and hold consultations with prospective clients via telephone or video conference. If you need to contact us, please do not hesitate; we are happy to speak with you about your situation, your needs, and how we can help.

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Child's Welfare

As a parent, your child’s welfare is your top priority. If you’re going through a divorce and you’re worried that your child might be at risk of harm under the other parent’s supervision, you might want to shield your child from the other parent and get sole child custody on a temporary basis.

The laws that govern this type of situation can be confusing to parents, so we’ll try to clear them up for you. In this article, we’ll talk about how to get temporary or emergency custody of a child in North Carolina, and we’ll also discuss when sole custody is a long-term option.

When Can I Get Temporary or Emergency Custody of My Child in North Carolina?

During a divorce, most parents agree to an informal child custody arrangement before the final child custody hearing, when the court issues an order that determines custody from that point on. However, sometimes a parent’s behavior puts a child in danger or unfairly limits the other parent’s custody time.

In these circumstances, a judge in North Carolina might award temporary or emergency custody. While they sound similar, temporary child custody and emergency custody are actually different.

  • Emergency custody: To get emergency custody, you must show that shared or joint custody would put your child at serious risk for injury, abuse, abduction, or removal from North Carolina. Getting emergency custody can be a complicated and contentious process. If you need emergency custody, it’s in your best interest to immediately contact a Charlotte child custody lawyer.
  • Temporary parenting arrangement: While temporary custody procedures vary from county to county, Mecklenburg Count awards temporary custody through a temporary parenting arrangement. Your situation might qualify for temporary custody if there’s evidence the other parent is denying you access to your child, if there are legitimate mental health or substance abuse concerns, or if a parent is moving. Temporary parenting arrangements are also available when one parent goes on a military deployment.

Typically, the court will schedule a temporary custody hearing two to four weeks after you file a petition. These hearings tend to last about an hour.

You can also petition for emergency custody through a domestic violence protective order. However, such an order can only control custody or visitation for a temporary period of at most one year.

It’s important to understand that you should never simply take your child or deny the other parent access to your children unless you either have the support of a court order or you have serious, legitimate concerns about the safety of your child with the other parent. Abducting your child or refusing to share parenting time can lead to you losing custody or facing criminal charges, especially if you can’t prove there was an imminent danger to the child.

If you need help with an urgent child custody matter in Charlotte or Mecklenburg County, get in touch with us right away.

Will a Temporary Parenting Arrangement Affect My Right to Permanent Child Custody?

In Mecklenburg County, temporary parenting arrangements will generally control the custody arrangement until the final trial for permanent custody. When the judge finally creates the permanent order, they can make any alterations they want — they aren’t required to keep the same stipulations from the temporary agreement. If there was evidence of poor parenting decisions or other misconduct while the temporary parenting arrangement was in effect, your child custody lawyer should bring these issues up again at the final child custody hearing.

RELATED: 7 Mistakes That Can Hurt Your Child Custody Case

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Understanding the Types of Child Custody

Before we address sole custody and the grounds of sole custody, it’s important to understand the two types of North Carolina child custody.

  • Legal custody: The right to make important long-term life decisions for your child, such as directing their education, healthcare, and religious upbringing
  • Physical custody: The right to supervise your child on a day-to-day basis and make routine decisions for them

Parents can have sole or joint custody of the child for both types of custody. Sole custody is when one parent has full control of legal custody, physical custody, or both; joint custody is when both parents share custody. Joint custody can take many forms and can range from one parent having primary custody (meaning the child is with that parent the majority of the time) and the other having secondary custody or the parents having a schedule that is almost equal. It’s not uncommon for one parent to have sole legal custody of the child while the parents have some sort of joint physical custody arrangement.

Ideally, you and your child’s other parent will negotiate a child custody agreement outside of court. However, this isn’t always possible. If you can’t come to an agreement, a judge will review your case and award custody based on the best interests of the child.

How Do I Get Sole Custody of My Child in North Carolina?

To get sole custody of a child, you must show that joint legal or physical custody is either impossible, impractical, or would put your child’s welfare at risk. While most people associate sole custody with contentious breakups or abusive situations, a court might also decide that sole custody is in a child’s best interests if one parent hasn’t played a role in the child’s life or hasn’t sought custody.

The court also has ways to address situations where one parent works irregular hours, travels frequently for work, lives out of state, or is otherwise unable to consistently parent and care for the child. In these cases, the judge may order a schedule that places the child with one parent the majority of the time. Meanwhile, the other parent gets visitation that works with that parent’s schedule or that minimizes the child missing school if travel is required.

Getting sole physical and legal custody can be difficult without help from an experienced child custody lawyer. If you have legitimate concerns about the other parent’s ability and willingness to care for your child, contact Myers Law Firm for a confidential case evaluation. We can help you understand your rights and talk you through your custody options.

Myers Law Firm: Advocates for Parents and Children in North Carolina

At Myers Law Firm, our goal is to protect both parents and children during a breakup or divorce. We work closely with our clients, taking time to understand their concerns, developing personalized legal strategies that meet their needs, and vigorously fighting for their rights.

While we pride ourselves in handling child custody issues peaceably and with compassion, we’re committed to protecting your rights and advocating for your child’s best interests above any other concern. To schedule your initial consultation, please call our Charlotte office toll-free at 1-888-376-ATTY (2889) or get in touch with us using our online contact form.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

Contact Myers Law Firm

We are committed to continuing to serve our clients’ legal needs

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We are able to meet with clients and hold consultations with prospective clients via telephone or video conference. If you need to contact us, please do not hesitate; we are happy to speak with you about your situation, your needs, and how we can help.

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North Carolina General Assembly

This is Part 1 of a recent article that I wrote regarding recent laws passed by the North Carolina General Assembly which affect family law and divorce issues.  Part 2 will be coming soon.

The recent legislative session of the North Carolina General Assembly was notable for many reasons and brought a lot of attention to the State of North Carolina.  While one high profile bill that was passed in the area of family law garnered a good bit of national attention, there were several others that could significantly impact family law practitioners.  The following is a summary of new laws that were enacted during the long session of the 2013 General Assembly that may impact you in your representation of domestic clients.

Uniform Deployed Parents Custody and Visitation Act

One comprehensive piece of legislation was the adoption of the Uniform Deployed Parents Custody and Visitation Act .  This law amends N.C.G.S. §§ 50-13.2 and 50-13.7A, and creates a new Article 3 in Chapter 50A.  This law became effective October 1, 2013.

The first section of the new law amends N.C.G.S. § 50-13.2 by adding a new subsection (f).  This new subsection prohibits a court that is making a custody determination from considering past military deployment or possible future deployment as the only basis in determining what is in the child’s best interest (emphasis added).  The new subsection does allow the court to consider past or possible future deployment that has any significant impact on the best interest of the child.  In practical terms, the result is that the court cannot use past or future deployments as the only basis for a custody decision, but may use it as one of several factors.  Furthermore, if the past or future deployments have a significant impact on the child’s best interest the factor may be weighed more heavily.

The second section of the new law repeals § 50-13.7A.  These were the previous provisions regarding custody and visitation for military members.  These provisions are replaced by the much more comprehensive provisions in section three of the law.

Section 3 of the law creates a new Article 3 in Chapter 50A, titled the Uniform Deployed Parents Custody and Visitation Act.  The Uniform Act is broken down into four parts.  Part 1 of the Act are the “General Provisions” and begins with an outline of 18 various definitions used throughout the Uniform Act.  While most of the definitions are standard and should be reviewed by the family law practitioner, there are a few worth mentioning.  “Caretaking authority” is defined as “the right to live with and care for a child on a day-to-day basis, including physical custody, parenting time, right to access, and visitation.”   “Custodial responsibility” is defined as “a comprehensive term that includes any and all powers and duties relating to caretaking authority and decision-making authority for a child.  The term includes custody, physical custody, legal custody, parenting time, right to access, visitation, and the authority to designate limited contact with a child.”   Another definition to note is that “record” is specifically defined as “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.”

Part 1 of the Act includes a provision for attorney fees “and other appropriate relief” to be assessed if a party acts in bad faith or intentionally fails to comply with the requirements of the Act.   Part 1 also requires that an issuing court have jurisdiction pursuant to the UCCJEA, but provides that deployment does not change the residence of deploying parent.

Furthermore, Part 1 requires a deploying parent to provide notice to the other parent of a pending deployment not later than seven days after the deploying parent receives notice of deployment unless the parent is prevented from providing notice due to “circumstances of service”, and then notice must be provided as soon as reasonably possible.   The notice required under this provision must be provided in a “record”.  The deploying parent also must provide other parent with a plan for fulfilling that parent’s share of custodial responsibility.  If a person to whom custodial responsibility has been assigned during a parent’s deployment moves, then notice must be provided to the deployed parent and any other person with custodial responsibility, and notice must be provided to the court if there is a court proceeding.

Part 2 of the Act allows parents to enter into a temporary agreement granting custodial responsibility during one parent’s deployment.  The agreement must be in writing and signed by both parents and any nonparent who is given custodial responsibility.   The statute outlines a non-exclusive list of items that may be included in an agreement.   If there is an existing court order for custody or child support, the agreement must be filed with the court.

Part 3 of the Act outlines the judicial procedures after a parent receives notice of deployment.  Either parent can seek a judicial order after notice of deployment and the court may only enter a temporary order, unless the deploying parent agrees to a permanent order.   The hearing is to be expedited  and testimony by electronic means is allowed, unless the court finds good cause to require personal appearance.   A prior judicial order which contains provisions for deployment must be enforced unless the circumstances require modification and the court must enforce prior written agreement between parents unless agreement found to be contrary to best interests of child.

The statute allows for the court to grant caretaking authority to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship.   This grant of authority is limited by the language “in accordance with the laws of this State….”  In this author’s opinion, this limitation makes most of the provisions in Section 3 either invalid or extremely limited.  The current North Carolina law in the area of third party custody is limited to situations where parents are alleged and proven to be unfit, neglectful or have acted inconsistent with their parental rights.

If the other parent will not agree to this third party, the court is limited to allowing the third party only the time allowed the deploying parent by a current order or “the amount of time the deploying parent habitually care for the child.”   The statute also allows the court to grant decision-making authority to this third party to an adult family member or person with whom the child has a close and substantial relationship and the court must be specific about the powers being granted.  Any nonparent is made a party to the action until the grant of authority is terminated.

The statute allows an order to outline contact for the child with the nonparent  and outlines certain factors each order must contain, in addition to being only a temporary order.

Part 4 of the new statute contains the termination provisions.  An agreement under the new law terminates upon further agreement by the parents or 60 days after the deploying parent provides notice that he or she has returned from deployment.   If an order was entered by a court, the order terminates by agreement of the parties  or 60 days after the deployed parent provides notice of return.

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No Social Security Number of Absolute Divorce

One piece of legislation that was passed was overdue.  With Session Law 2013-93, the General Assembly removed the provisions N.C.G.S. § 50-8 which required that the plaintiff in a divorce proceeding provide his/her social security number and the social security number of the defendant, if known, in a complaint for absolute divorce and a judgment of divorce.

This law was effective when it became law on June 12, 2013.

Entireties Property Presumed to be Marital Property

With Session Law 2013-103 , N.C.G.S. § 50-20 was amended to include the presumption that real property acquired after marriage and before separation as a tenancy by the entireties is marital property, no matter what source of funds was used to acquire the property.  The “marital gift presumption” has been a part of North Carolina equitable distribution law since at least 1985.

McLeod v. McLeod, 74 N.C.App. 144, 327 S.E.2d 910, review denied, 314 N.C. 331, 333 S.E.2d 488 (1985).  This same bill also amended the definition of divisible property to clarify that passive increase and decreases in marital debt and financing charges and interest related to marital debt are divisible  (emphasis added).  This change makes it clear that active increases and decreases are not divisible (emphasis added).

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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