Articles Posted in Child Custody

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CarolynFollow “Ask Carolyn” on Twitter

Dear Carolyn:

Now that summer is almost over and school will be starting back, I am reflecting on the summer trip with my two children, who are 9 and 11.  Their mother and I are divorced, and I am trying to make summer memories with them that will last a lifetime.  This summer we ventured to the West Coast to see the sites.  While in Flagstaff, Arizona, we saw advertisements for a place called “Bullets and Burgers” in Arizona. That reminded me of the headlines about a nine-year-old girl from New Jersey, who killed her Uzi instructor in a place like this.   I am just curious if this could happen in North Carolina.  What are the North Carolina laws on this?  Do we have places like “Bullets and Burgers” in North Carolina?  My ex is dating a guy who owns a lot of guns.  Could he take my children to such a place?

~Curious and Concerned

Dear Curious and Concerned:

           You are referring to a story of a 9-year-old girl from New Jersey who was on a family vacation in Arizona. This story received lots of attention in the legal arena and in legal publications.  Her family took her to the place called “Bullets and Burgers.”  She was assigned an instructor and shot a single shot weapon without any trouble.  The instructor then let her shoot an Uzi automatic weapon that shoots 600 rounds per minute. She lost control of the Uzi, shooting and killing her instructor, inadvertently.  No charges were filed and the accident was ruled to be an “industrial accident.”             Continue reading →

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Dear Carolyn,

Visitation exchanges are almost always awful for my eight-year-old when the exchange is not at school.  I am a Father with fifty-percent custody.  I have Mondays and Tuesdays overnight.  My ex has Wednesdays and Thursdays overnight. We alternate weekends.

When school is out, we do the exchange at a local fast food restaurant.  My ex almost always brings her new boyfriend with her, and he almost always says something “smart” or derogatory toward or about me.  I have emailed my ex to stop these and I have asked her not to bring him.  My eight-year-old hears this nonsense.  What should I do?

~ Exchange Woes

Dear Exchange Woes,

           It is obvious that it is not in the best interest of your child to hear the adults around him or her bickering during visitation exchanges. Your child is part of both you and your ex, and as such, he or she probably is stressed to hear derogatory comments about his or her father. Visitation exchanges should be happy for the child preparing to spend time with the other parent.

In Randolph County, several years ago, the news reported a tragedy at a visitation exchange from which we can learn.  Mom and Dad both had someone else with them at the visitation exchange.  The two other people got into an argument at the exchange, and one of the two other people at the exchange shot the other one (non-fatal shooting).   Apparently, the child apparently witnessed this shooting.

So, what should the rules be for visitation exchanges when the parents just do not get along, or there are other troublemakers, such as your ex’s new boyfriend?

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Follow “Ask Carolyn” on TwitterCarolyn

Dear Carolyn:

I am in a custody battle with my ex-husband.  My nine-year-old wants to live with me.  Can my nine-year-old simply tell the judge this, and then we are done with this mess?  I have heard a child can talk to the judge in “chambers,” but I am not sure what this means.

Carolyn Answers….

I am sorry that you and the Father were unable to decide together as the parents what is best for your child.  But, if the parents cannot decide, a person in a black robe will make the decision on what the “best interests” of your child is.

First, and I want to say this gently to you, a nine-year-old does not have the maturity to make the decision of where he or she should live and what is in his or her “best interests,” generally. Cases of abuse and neglect are perhaps different, but you do not mention that the child is being abused or neglected by the Father. This answer assumes that there is no abuse or neglect of your child by the Father.

Second, the court does not give “final say” to anyone. The court hears the evidence and judges the credibility, maturity, and objectivity of witnesses, and then the court, in its wisdom, renders a decision. Given the age of your child, in my experience, the judge would give little weight, most likely, to the opinions of a nine-year-old on what living arrangement is best for the child. The court may even consider whether you were influencing the child against the Father, whether intentionally or unintentionally, and give the Father even more time to offset your influence.

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Dear Carolyn:

The court has just ordered me to participate in a child custody evaluation with a local psychologist.  My children are seven and thirteen. I am a concerned Father, and the Mother has a new boyfriend that is “no good”. This new boyfriend is terrible around my children, and he is even spending the night with the Mother while the children are there. I disapprove of this. I also think the boyfriend is drinking and driving with the children in the vehicle.

What is a child custody evaluation?

Carolyn Answers….

A legitimate child custody evaluation is a complex process performed by a North Carolina licensed psychologist (PhD) under guidelines established by the American Psychological Association (APA).  The APA adopted and published Guidelines for Child Custody Evaluations in Divorce Proceedings in 1994, which were updated in 2009.

Here are the typical stages of a child custody evaluation, where there are no sexual abuse or other abuse allegations.

  1. Initial interview of each parent and general information gathering: The psychologist has an initial meeting with each parent and receives information from the parent, which includes general background, education, employment, family of origin, education, medical issues, stressors, and anything else of general relevance to the matter. Information gathering might be police reports, letters from attorneys, previous psychological evaluations, mental health records, school records, and similar information. Be sure to tell the custody evaluator about the boyfriend, the drinking, and your concerns in your first interview. The psychologist may decide to seek an interview with the boyfriend, and certainly the psychologist will gather information from the Mother and the children on this boyfriend.
  2. Test Administration to the Parents: Most typically in our area, the psychologists use the MMPI-2 for objective testing. This test is comprised of 567 true-false questions. While there is much research regarding how to interpret the results, the test remains controversial for use in child custody evaluations, so the evaluator has to be careful with regard to the use of any objective testing. Continue reading →
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By: Carolyn J. Woodruff, attorney

While nothing in this article should be viewed to condone the horrific acts of Christopher Lee Neal, age 42, who shot at a social services worker after children were taken from his home, the event should be a wake up call for the Department of Social Services (DSS). Apparently this Reidsville man targeted at least two social services employees that had been working on his child custody case. He shot at one of the social workers through her car window in Burlington. According to news reports, she was not injured. He was later apprehended in Myrtle Beach.

Let’s face it. Taking away a child is serious business and emotionally drenching, and should only be done by DSS with all the proper protocols, which involve either having law enforcement or a Juvenile Judge.   Unfortunately, DSS is many instances is acting outside the bounds of the law and the Constitution, and they do not follow proper protocol regarding the removal of children, in allegedly dangerous situations, from homes. This makes a parent mad.

DSS is not law enforcement, and DSS is not a court of law. DSS is an agency that MUST apply to the Juvenile Court for the authority for search and seizure of children. DSS can assess the danger and apply to the Juvenile Court, but DSS is not permitted to “search and seize” children based on its own safety assessment. This seizure is improper. While I like Sheriff Page, his statement if reported accurately is both incorrect and not in keeping with the US Constitution. He reportedly said in a Press Conference, ‘Child Protective Services were investigating a case…During the process in their job, sometimes they have to remove children from the home because of neglect and abuse.” No, this is not correct. DSS can investigate, and DSS can apply to the court to obtain an order to remove the child, but DSS cannot do this removal simply because DSS thinks it should. To do so is unconstitutional search and seizure.

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By Sade Knox, Intern, Woodruff Family Law Group

King v. Giannini-King, 784 S.E.2d 237 (N.C. Ct. App. 2016).

Facts: In October 2001, Plaintiff (father) and Defendant (mother) were married and then separated, about seven years later, in early June 2008. Two minor children were born to the parties’ marriage. After the separation, Defendant relocated with the minor children. Subsequently, to Defendant’s relocation, Plaintiff brought an action for divorce from bed and board, child custody, and equitable distribution. Defendant filed a motion to dismiss, a motion to strike, in addition to a counterclaim for custody, child support, alimony, etc.

The trial court initially granted both parties temporary joint legal and physical custody of the minor children. The trial court, nearly a year later, entered a custody order, granting Defendant permanent legal and physical custody of the minor children, and permitted Defendant’s relocation of herself and the minor children to Wilmington, N.C.

Plaintiff was granted visitation rights and relocated to Southport, N.C., where the parties began to modify their custody schedule. Plaintiff later remarried and returned to Person County. Soon after, Plaintiff filed motions alleging a substantial change in circumstance, which resulted in the trial court transferring primary physical custody of the minor children to Plaintiff, temporarily, and allowed Plaintiff to relocate the minor children to Person County.

Defendant filed a motion asking for a new trial, or set aside the temporary order, shortly thereafter, which the trial court denied.  Finally, in mid-December 2014, the court entered a permanent order that granted both parties joint legal and physical custody of the minor children. Defendant appealed arguing the trial court had erred in their custody orders.

Issue: Whether Plaintiff’s argument concerning the temporary custody order was appropriate for appellate review. Was there enough evidence to support a substantial change in circumstance?

Answer to Issue: No. Yes. Continue reading →

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Dear Carolyn,

Triad parent here, contemplating divorce, but I feel compelled to stay together for the children.  The children are ages ten and twelve.  However, the marriage is quite bad; we argue all the time.  We never do anything together, and sex—forget that.  I work, and my wife does not work.  Can you give me any insight into considerations for whether I should stay in the marriage for the children, or at least until they are in college?  I want to do what is best for the children.  I am miserable.

Miserable

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Stapleton v. Comm’r, T.C. Memo. 2015-171, 2015 WL 5049758

Facts: A father and mother had two children. The parents were never married. No court was ever asked to decide custody, but the parents agreed that the father would have the children every Monday and Wednesday night and every other weekend. In 2011, the father had custody of the children for 176 days.

The father claimed the dependency exemption for both children on his 2011 tax return. The IRS disallowed the exemption, and the father appealed to the Tax Court.

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Leesa M. Poag, Attorney, Woodruff Family Law Group

When a couple decides to separate and end their marriage, there are often other issues that must be resolved along with the divorce.  Family law attorneys in North Carolina often include claims for issues such as custody of the children and division of the marital property along with the divorce claim.  But an issue that has recently become more and more prevalent is one that falls somewhere between the custody and property division issues – when two people separate, which spouse gets to keep the family pet?

While the question of who will keep the pets is a common one in many cases, it has proven to be especially contentious in cases where a couple has no children, or the children are grown up and are no longer in the home.  One can understand how this situation can lead to a party having a stronger than normal bond with the pet, sometimes even treating the pet as their child.  (And hey, you don’t have to pay to send Rover to college!)

Traditionally, courts have viewed pets as personal property of the parties.  The typical approach to dividing personal property is a three step process which includes first classifying the property (either separate or marital), next, valuing the property as of the date of the parties’ separation, and finally making a distribution of the property between the parties.  While this approach might be simple when it comes to your sofa, it is proving to be a much more difficult question when it comes to your Schnauzer.  How does one place a value on a pet?  Should the court value your family dog at the amount that you paid for him, or should the sentimental value that the dog now has as a member of the family be considered?  And if the parties can’t agree as to who should keep the pet, how does a judge, who is unfamiliar with the parties or the animal, make such a determination?

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Jennifer A. Crissman, Attorney, Woodruff Family Law Group

          One thing that parents from all walks of life can commiserate over is the struggle to find child care. If you are a new parent, expecting your first child, new to the area, or just considering a change in care, there is a lot to consider when choosing a child care provider. There are several crucial criteria to keep in mind when searching for a daycare or preschool: curriculum, ratings, and your gut.

Curriculum

          Some daycares are just that – care for the child during the day. At the daycare, there may be a schedule for naps, feeding, and playtime, but no set curriculum. What differentiates a daycare from a preschool is the curriculum. While it may sound ludicrous, it is important that all children (yes, even infants) have a curriculum. So, when I first heard of this concept, all I could picture was a child who could barely speak taking a pop quiz on shapes, colors and the alphabet. But this is not what curriculum is all about.

The primary purpose of a curriculum is to identify when teachers should be introducing new concepts, tasks, and challenges to your child at certain developmental milestones. For example, if your child is having trouble walking and is frequently stumbling then the curriculum would address your child’s gross motor skills. Teachers can provide the child with uneven surfaces to walk on or navigate to help your child’s balance and coordination develop. A curriculum is just a plan to help your child grow, and as a parent, you should never feel nervous asking a potential provider for a copy of their curriculum.

Ratings

          Parents who have a child already enrolled in a facility are likely familiar with the star rating system in North Carolina. The North Carolina Division of Child Development and Early Education developed a star rating system for licensed facilities to help parents quickly identify the standards their provider is meeting. The star ratings range from one to five, with five stars being the highest rated licensed facilities. Facilities earn their stars based on their staff education and their program standards. The state also has a website where parents can search for a provider in their county and refine by special requirements. A link to this site is provided at the bottom of this article.

Continue reading →