Articles Posted in Children

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A 529 Savings Plan allows parents to put aside money for their kids’ college expenses under tax-favorable conditions. How should trial courts classify the money in a 529 Savings Plan that is created and funded during marriage when a couple is getting a divorce?

In a recent North Carolina marital property appellate decision, a mother argued that contributions to a 529 Savings Plan were a gift to the children, rather than marital property to be divided. Alternatively she requested that the court carve 529 Savings Plans from the marital estate by creating a rule to treat the property differently from other marital assets.

The appellate court rejected her arguments, explaining that the beneficiaries of the plan didn’t have ownership of the funds, and the people participating in the plan could choose not to spend the money on education and after paying a penalty could spend it on something different. Accordingly, contributions aren’t gifts. The court also explained that it didn’t have the authority to create a way to carve 529 Savings Plans from the marital estate. It reasoned that the General Assembly was the governmental body with this authority, and that its role was to consider the purpose of marital funds to determine equitable distribution.

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In a recent appellate court decision that discusses an aspect of North Carolina custody law, a mother appealed from an order that granted her and the father joint custody of teenage children pending the start of a reunification program. The program was supposed to fix the kids’ relationship to their father, which the court determined was damaged by the mother’s alienating conduct.

The order gave the father primary physical custody of the children after starting the program, while the mother’s visitation with the kids would be temporarily suspended pending the program’s completion. The order also directed that the kids go to private or public school, instead of being homeschooled by their mother.

The case arose in connection with three children born from a couple’s marriage. The father demanded custody when they were older because the mother had committed adultery. The mother responded to the father’s complaint and letter by taking the kids to South Carolina and cutting off the father’s contact. The father filed a motion for emergency custody relief, claiming the mother had a relationship with someone in Sweden and that she planned to go there with the kids despite his objection. He was worried the mother would take the kids and not come back. The court granted him temporary exclusive custody of the children in an emergency order.

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by Tina Ray, Legal Assistant

Growing up in a tiny town near Greensboro, N.C., I can remember being a kid and playing in the yard, getting skinned knees and bee stings.  That’s what we did “back then.”  I remember picking up pecans and climbing trees and riding my bike.  We had a rotary dial telephone.  What is that you ask?  It’s a telephone that had a dial with holes in that had a handset attached to it with a curly cord, and the entire thing was attached to another cord that made it work!  We did not have air conditioning until I was about 12 years old.  Window fans were placed in our windows to draw the hot air out of the house, and indoor box fans blew hot air around inside the house.  We had a gravel driveway, and I sometimes had to help fill in holes in the driveway with a rake or a shovel so we wouldn’t blow a car tire driving in and out of it.  Listen to this; we did not have a weedeater!!!  I can, believe it or not,  remember using handheld clippers and having to go around the outside of the house and flower beds and trim the weeds BY HAND!!

My grandfather used to take my sister and me to a nearby store, and we got to pick a bottle of Coke out of the metal cooler and play pinball while he sat around and discussed world issues with the other locals.  Getting that Coke and playing pinball was the highlight of my week.  Grandpa would give me a quarter to clean his glasses with a paper towel and soap and water.  A quarter!  My other favorite thing was going to Woolworth and my mother buying me a 45 rpm vinyl record that I could play on my red, plastic record player that I worshiped.  By the way, I was only allowed to get the record if I had been good that week, and if I didn’t get one, I was devastated.  We hung our clothes on the clotheslines behind our house in the mornings and took them off the clotheslines in the afternoons, and if a storm sprung up, we had to run outside and snatch them off quickly, before the rain started.

I am not going to reveal my age but trust me; my upcoming birthday is a milestone birthday.   In my mind, I’m still that little girl, but when I look in the mirror, I get a shock!  Sometimes, people say, “you should be thankful to have a birthday, think about the alternative.”    I am very thankful.  I am also very thankful to have air conditioning, a washer and dryer, a paved driveway, a weedeater and a cell phone that can play music at the touch of a finger.

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by Carolyn Woodruff, Attorney

The custodial parent must not decrease the status of the other parent in the child’s eyes. That is fundamental.

Also fundamental: Do not place the child in the middle of the parent’s dispute.

Woncik versus Woncik, from the court of appeals in North Carolina is instructive on the two fundamental principles mentioned above. The plaintiff Darlene Woncik is the mother and Edward Woncik is the father. The case is 1986 North Carolina case but still instructive on child custody.

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by Carolyn Woodruff, attorney

What is the best way to get your visitation suspended? Alienate your child or attempt to alienate your child from the other parent.

A case that was filed September 18, 2018, in the North Carolina Court of Appeals illustrates this tragic error on the part of the mother. See Sneed vs. Sneed. The plaintiff, the father, is Jason M. Sneed. The defendant mother is Charity A. Sneed. The case is originally from Mecklenburg County. I must admit, I find Charity an interesting name for the mother, given her conduct.

Father, learning of the mother’s adultery, served a complaint for child custody on the mother in North Carolina, and mother immediately removed the children to South Carolina against father’s wishes and cut off all conduct with the father. Father petitioned the trial court to grant a temporary and exclusive emergency custody order, which ordered the mother to return the children to North Carolina. Upon the mother’s return, the parties agreed between themselves to an alternating week of physical custody. When the mother continued to refuse to comply with the agreed-upon schedule, the father then filed a custody evaluation motion to have a psychologist look at this situation. This mother also homeschooled the children and the father alleged that she was alienating the children from the father and that the father’s relationship was continuing to deteriorate.

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by Leesa M. Poag, Attorney

We are officially in the midst of the best season of the year.  No, I’m not referring to the pumpkin-filled days of Fall.  I’m talking about football season.  But as we don our team colors and cheer on our favorite players, the on-field battles aren’t the only ones that family law attorneys are seeing this time of year.  As concerns about the long-term effects of head injuries from football continue to mount, we are beginning to see football leaving the locker room and heading to the courtroom.

Most parents would agree that extracurricular activities are beneficial for children of all ages.  They often provide the opportunity for exercise and allow for the development of skills like teamwork, perseverance, and hard work that will certainly serve the child well as he or she grows older.  Typically, the main dispute family law attorneys see regarding custody and extracurricular activities involve scheduling – can one parent sign the child up for an activity that will take place on the other parent’s custodial time, and vice versa.

But as the studies continue to emerge regarding concussions and traumatic brain injuries resulting from football, some parents are beginning to throw a flag on their children’s participation in the game.

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Carolyn Woodruff, J.D., C.P.A, C.V.A.

Dear Carolyn,

I reluctantly entered into a consent child custody order with the mother of my child in 2013. We were never married and never actually lived together. The child is now five having been born in 2011. I get visitation under the 2013 order, but the court never heard any evidence in 2013. We simply agreed. Now, I am very concerned this mother is unfit. She continues to smoke around the child who has asthma. She also has been charged with drug possession in both 2012 and recently. She will not let me have a relationship with my kid. She threatens to move out of state. There are things I need to tell the court about from the child’s birth until 2013 (date of current custody order), but my attorney says I cannot use the 2011 to 2013 evidence in my motion to modify custody. I want primary custody with the mother having supervised visitation. Is there any way I can present the proof of what this mother was like from 2011 to 2013? I think the mother of my child is unfit. What can I do?

– Worried about unfit mother

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Carolyn Woodruff, J.D., C.P.A, C.V.A.

Dear Carolyn,

I am the father of two children, ages 10 and 12.  The mother of the children lives in West Virginia, where she moved after our divorce. The children were born and always have lived in North Carolina. The North Carolina order for custody allows the children to travel to West Virginia for 5 weeks in the summer. Last year the mother did not return the children when she was supposed to at the end of the summer, and the court here held mother in contempt. She filed for custody in West Virginia last summer claiming fictitious abuse of one child, but that case in West Virginia was dismissed. Then, I got them back. I heard that this might be kidnapping under some federal law. Can you explain kidnapping and whether I have any right with regard to kidnapping if this happens this summer?

– Frustrated and Looking for Options

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Carolyn Woodruff, J.D., C.P.A, C.V.A.

Dear Carolyn,

I am a grandmother, and I want to help pay for the tuition for my grandchild’s day care and education at a nice day care facility.  Then, my daughter and son-in-law can work without worry.  They own their own business, and they both need to focus some quality time on the business, while maintaining my grandson as top priority.  My toddler grandson will benefit from the education and interaction with the other children at this particular day care, but it is darn expensive.  Should I give the money directly to my daughter or to the day care?  Is there a tax advantage one way or another?

           – Grandmother of the best grandchild ever…

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Carolyn Woodruff, J.D., C.P.A, C.V.A.

Dear Carolyn,

I am a father of a beautiful 8-year-old daughter and a handsome 10-year-old son.  I live here, but the mother lives in California.  The mother has custody, but the children will be visiting with me for the last two weeks of July and the first two weeks of August. While I don’t have much time given the distance between the mother’s house and mine, I really want to make the time count that I do have.  I can take two of the weeks off from work, but I have to work two of the weeks.  What suggestions do you have?

– Dedicated Dad