Articles Posted in Child Custody

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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.

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Jennifer A. Crissman, Attorney, Woodruff Family Law Group

            The name “Responsible Individuals List” may sound like an accolade to parents; however, this is a misnomer. For those unfortunate enough to find their family in the midst of an investigation of child abuse, neglect, and dependency the List is likely to be mentioned. It is important that anyone who finds themselves in this situation be aware of what the term means and the ramifications of being on this list.

The Responsible Individuals List and Consequences

            The actual list is comprised of the names of individuals who are found to be responsible for the abuse and serious neglect of a juvenile. The List was created by statute in 2006 in response to federal requirements under the Child Abuse Prevention and Treatment Act (CAPTA). The primary goal of the federal regulation was to create a child abuse registry that was accessible to certain authorized agencies which must determine the fitness of an individual to care for or adopt children.

In 2010, the NC Court of Appeals held that placement on the List impacts an individual’s Constitutionally protected liberty interest. In re W.B.M., 690 S.E.2d 41 (N.C. App. 2010). Placement on the List can prevent an individual from being able to care for children, whether it be through employment, fostering or adopting. Although the List can affect a person’s ability to care for children, the statutes do not address the length of time an individual is placed on the List. The statutes also do not provide for an expungement procedure after a specified period has expired.

The List and Caring for One’s Children

            Although placement on the List can prevent a person from adopting or fostering, the List does not necessarily prohibit an individual from caring for their child. There are currently no cases in North Carolina that address being added to the Responsible Individuals List and then being denied reunification with your children. Further, North Carolina statute, the North Carolina Administrative Code and the Department of Social Services Manuals only address using the Responsible Individuals List for employment purposes or foster/adoption/kinship placement determinations. Currently, it appears the impact of being placed on the Responsible Individuals List is limited to children who are not biologically your own.

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by Benjamin Neece, Attorney

With Valentine’s Day around the corner, love is in the air and it is a great time to express it to those who you care about most.  It is important that during this festive season that you remember that your children are the ones who need your love the most and we are here to help with some creative ideas on how to make the most of your time with them.  When it comes to time with your children, it is important to remember the deliberate nature in which you must approach each moment you have with them.  Visitation must become more than simply being together; it is of the utmost importance to engage your children, take part in new and exciting experiences with them, and create lasting memories that you can share together for years to come.  Valentine’s Day is a great opportunity to express and grow the love between you and your children and it never hurts to have a few ideas in your back pocket to make your time together special.

For younger children Valentine’s Day is a big deal; a good way to keep within the spirit of the holiday is to set aside time for fun and celebration.  A trip to Charlotte, NC provides many options to accomplish this.  Charlotte is home to the Discovery Place Museum- a childhood utopia that is sure to keep everyone entertained while engaging in interactive learning.  Afterwards, crafting valentines to exchange with each other and even take home is a great way for kids to express their love to both parents in a meaningful and fulfilling way. Continue reading →

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Child

When a marriage breaks down, the question of child custody becomes inevitable. This can often be the most emotionally charged and even contentious part of a divorce. At the Woodruff Family Law Group, our compassionate and hard-working North Carolina child custody attorneys will let you know your rights as well as your options during this difficult time.

In Heatzig v. Maclean, a biological parent of children conceived through artificial insemination disputed the rights of her former same-sex domestic partner. The couple lived together and took care of the children for three and a half years. The relationship ended and the defendant left the shared home and took the children with her. The plaintiff filed a lawsuit seeking joint and physical custody of the children.

The court assessed the following factors:  i) the plaintiff and the defendant made a joint decision to create a family unit; ii) the defendant deliberately identified the plaintiff as a parent; iii) the sperm donor was chosen based on certain physical characteristics similar to those of the plaintiff; iv) the plaintiff’s last name was used as one of the child’s last names; v) the plaintiff was present throughout the pregnancy and took part in the child’s birth; vi) both the plaintiff and the defendant were identified as parents at the child’s baptism; vii) the plaintiff was listed as a parent on the child’s school forms; and viii) the plaintiff had the authority to make medical decisions for the child. The Court noted the defendant had been trying to get pregnant for a while before she began her relationship with the plaintiff.

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Legal CustodyWhen the parents of minor children split up, they need to figure out how and if they will share custody of their children. North Carolina parents are free to agree upon any custody and visitation agreement they deem best for the family. If the parents decide on an agreement, they can do that without the need for a trial, if they get the approval of the court. However, if the parents cannot reach an agreement, a court decides the matter. At the Woodruff Family Law Group, our seasoned North Carolina child custody attorneys have the skill, knowledge, and determination to handle your child custody case.

Under North Carolina law, there are two types of custody:  physical custody and legal custody. The parent with whom the child lives has physical custody of the child. The parent who has physical custody is responsible for the supervision and day-to-day physical care of the child. Legal custody pertains to the parent who has major decision-making powers over the child, specifically in the following ways:

  1. Regarding the child’s education, health care, and religion.
  2. Important matters regarding the child’s welfare and overall life.

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LawyerWhen parents decide to split up, it can be extremely difficult for the child to adjust to the change. When a parent decides to move to another state, the change can be even harder to deal with. At the Woodruff Family Law Group, our skilled North Carolina child custody attorneys understand the nuances of family law and can help you determine your legal rights and options.

In North Carolina, parents are free to decide on any custody arrangement they see fit. Child custody lawyers usually work with parents to create a routine for the children that works well for all parties involved. However, if parents are seen as unable to decide the custody or visitation arrangement, a judge will make that determination. North Carolina law requires judges to decide child custody matters using the “best interest of the child” standard.

If a parent needs to move to another state for a new job, new relationship, or other needs, a whole new custody agreement will need to be created. If you have an existing custody order in place, relocation out of the state can be a violation of that order, subjecting you to potential court-imposed sanctions, including contempt, an order to return the child, and possibly paying costs or attorneys fees. As a result, you would need to seek a modification of that order before relocating, and any changes that are made to the existing child custody agreement are required to be accepted by both parents.

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