Articles Posted in Children

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The United States, as a whole, has only allowed same-sex marriage for just over two and a half years. It is law that same-sex couples have the right to marry in the United States of America, but there are some who still struggle with the question of what exactly that entails. Certainly, same-sex couples can be married now, but are they afforded the same rights as heteronormative marriages? My answer is yes; if same-sex couples can legally marry, they should not have some cheap imitation of it. The law should give them the equal rights to their heteronormative counterparts, including hospital visitation, joint taxes, inheritance, and all other areas of the law. However, there are those who see same-sex marriages as inherently different from heteronormative marriages, and as such, believe they should not be treated the same or offered the same services. One such service, which is still heavily fought over, is the adoption of children.

Our neighboring state, Georgia, has recently had this argument enflamed in the form of Senate Bill 130. The bill would have been a major update to the state’s adoption laws, of which had not been updated in such a manner in 27 years. The bill stalled, neither passing or failing, at the end of last year after a provision was added by their state Senate Judiciary Committee which would allow private adoption agencies, including those that receive public funds, to refuse to place children in homes based on familial, cultural, or religious reasons.

Champions of LGBT+ advocacy argue the provision would allow the private agencies to discriminate against LGBT+ homes and cite any number differences between the children and the potential families. Sponsors of the amendment adversely claim that the added language in the bill would give agencies the power to find what they deem to homes more aligned in the interests of the children. It’s not hard to see both sides of this argument, as there is some truth to both sides. Certainly, agencies should consider the best interests of children, but it is also possible that such a provision could allow agencies to push their private agendas of what they believe families should be like, discriminating against not just LGBT+ families, but any family they do not want to place children with for any familial, cultural, or religious reason, rather than seeking out fit homes for children. A private agency could refuse to place a child in the home of divorcees, single parents, families of different ethnicities than a child, and families of different religions than a child even if the prospective families have the means and desire to care for a child.

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Dear Carolyn,

I believe I am the Father of a son, but the Mother is married to someone else.  I dated Mother while she and her husband were separated, but now they are back together.   We had sex during the time we were dating and the child was born 9 months later—perfect timing for the child to be mine. Mother and Mother’s husband will not let me see the child, and quite frankly, hide him from me.  I want to see my son.  What can I do?  I do not have any other children.

~ Bewildered Father

 

Dear Bewildered,

You have a chance for visitation, and here’s what you will need to do.  North Carolina has a very strong presumption that a child born of and during a marriage is the child of the Husband to the marriage.   You will have to file a lawsuit asking for visitation and asking that the presumption be overcome.

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Dear Carolyn,

I have been reading the horrid stories about children being left in hot cars.  I also have been troubled by my next door neighbor leaving her seven-year-old son alone this summer while she goes to work.  I have seen this mother lock the door when she leaves in the morning with the child apparently inside.  I do think the seven-year-old has a cell phone.  I don’t like this situation for the seven-year-old who just finished first grade. Is there anything I can do?

~ Danger Lurking Next Door

 

Dear Danger,

Ohhhhhh! It is a crime for someone to leave a child under eight years of age unattended.  Further, a child under age eight cannot be left locked up, as this is also a crime.  Children under eight years of age must be left with a supervisor of suitable age and discretion.   The parent can and will be prosecuted.  The placement in the law of this statute is interesting as it is presented as a “fire protection” for little children.  However, I do believe that leaving an unattended child under eight in a car would be a crime under this statute as well. (North Carolina General Statutes 14-318.)

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Dear Carolyn,

I know I should have kept my mouth shut during the divorce, but I didn’t. My daughter-in-law ended up with custody (not that it wasn’t somewhat justified), but now she is taking it out on us and won’t let my husband and I see our own grandchildren.  We worked hard and saved all of our lives, and now we have time and enough money for trips to the beach, mountains, even Disney World, and would love to take our grandchildren, but we aren’t even allowed to take them out for ice cream.  As grandparents do we have any rights?

 

Carolyn Answers:

You are in luck! The judge can help you, in his or her discretion.  The glitter of Disney with your grandchildren may very well be in your future.

North Carolina General Statute 50-13.5(j) covers the rights of custody and visitation of grandparents. You will need to file a motion (a written request to the court filed with the clerk of court) if you cannot obtain the visitation with your grandchildren from one of the parents. Continue reading →

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Dear Carolyn,

I have a two-year-old and a five-year-old, and I am separated from their Father.  I am filing for custody and divorce.  I hear I am going to have to go to mediation with the Father, and I really don’t want to see him. I am not exactly afraid of him, but it sure is unpleasant being around him.  Do I have to go to mediation, really?

~ Curious

 

Dear Curious,

You are likely going to have to go to a court ordered session of mediation to see if you can settle custody and visitation of your children with their Father.  Hopefully, the mediation process will end with a settlement and improve the situation with the children’s Father.  Do not worry as you will not

Mediation was added by the legislature to the custody statutes with five aspirational goals: (1) reducing acrimony; (2) developing custody solutions in the best interests of children; (3) providing parents with informed choices; (4) providing a structured, confidential and cooperative facility for discussion of co-parenting; and (5) reducing litigation and litigation of custody cases.

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Leesa M. Poag, Attorney, Woodruff Family Law Group

After the death of their eight-year-old son earlier this year, two parents in Ohio have filed a lawsuit against Cincinnati Public Schools. The child hanged himself with a necktie from his bunk bed, an act that his parents claim was a result of bullying he suffered at his elementary school.  The parents claim that the child was repeatedly bullied at his school, as were several of his fellow classmates.

This is, unfortunately, not the first such lawsuit to arise over the issue of school bullying.  As discussions surrounding bullying are becoming more prominent in our society today, so are parents seeking to recover damages as a result. In 1999, the Supreme Court addressed the issue of school liability in bullying cases.  In the case of Davis v. Monroe County Board of Education, the Supreme Court held that damages were recoverable from a school board in bullying cases, but only if the Plaintiff proves that the school was deliberately indifferent to the bullying.  The Court held that a Plaintiff must show that the harassment was so severe and pervasive that it effectively barred the child from access to educational opportunities. This standard creates an extremely high bar for a plaintiff to meet in a bullying case.

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By: Jennifer A. Crissman, Woodruff Family Law Group

 

Bullying in the classroom is, unfortunately, a continuing epidemic both nationally, as well as in the Triad. A new case out of Ohio has recently made news on this topic. An eight-year-old boy named Gabriel Taye from Ohio hanged himself from his bunk bed after being continually bullied at his grade school. The parents of the young boy have filed a wrongful death lawsuit against the Cincinnati Public Schools, asserting that the school is liable for the child’s death. The lawsuit states that school officials knew about the bullying but were indifferent to the situation and allowed a dangerous school environment to flourish for Gabriel.

Currently, the case law on school liability in the suicide of a student is somewhat sparse. There are two cases which make up the primary law on the issue: Davis v. Monroe County Board of Education, which deals with sexual harassment in schools, and Stiles v. Grainger County Board of Education, No. 01-91360 (6th Circuit, March 25, 2016), a 6th Circuit case which deals with bullying and sexual harassment. The main thrust of the cases is that schools are liable where the school’s deliberate indifference to the harassing behavior makes students vulnerable to further harassment or causes them to undergo harassment. Ultimately, the Court must determine what the school was aware of, and what, if any, remedial actions the school took after learning of the harassing behavior.

These two cases do not deal with the issue of suicide, as the students in these cases survived the bullying. In some ways, it may be more difficult for the Ohio court to ascertain the school’s liability as the student Gabriel Taye is not present to testify to the bullying behavior he had to endure and what the school and his teachers were aware of.           Continue reading →

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By: Benjamin N. Neece, Attorney

               Bullying is not a new or novel occurrence; however, the effects bullying may have come as a surprise to many.  Advancements in technology and the associated effects in society have created many new challenges in combating bullying, especially in schools.  Whereas before, a child who was bullied at school was able to achieve some relief upon the bell ringing and returning home- an escape was possible. Today cyber bullying creates a new outlet for tormentors to attack their victims, often anonymously, anytime day or night in front of a limitless audience. A dangerous problem is evolving into an uncontrollable one. So where do we look for help? A recent trend takes the position that bullying is a legal issue that should be confronted in a court of law, but should it?

Gabriel Taye, a young boy lost in the worst way possible, where bullying is believed to have played a major role. His tragic story raises an interesting question as to what role schools play in policing and monitoring bullying, and whether or not they should be held liable when the unthinkable happens.  Children today are smarter and more resourceful than ever; this is especially true with the introduction to electronics and technology at very young ages.  Bullying can be as obvious as physical abuse and as inconspicuous as verbal harassment via social media or messaging apps.  So how does the Court system come into play in enumerating the responsibility and liability of schools when it comes to bullying?               Continue reading →

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By: Ben N. Neece, Attorney, Woodruff Family Law Group

            At the heart of many family law related disputes lie arguably the most difficult decisions regarding the children and their futures.  At times it may seem unlikely that individuals in the midst of a divorce will ever agree on anything; fortunately, ensuring that any children involved receive a quality education is usually a top priority for everyone.  Setting aside differences for what is in the children’s best interest saves not only time but may also preserve important financial resources that may be reallocated to ensuring the children’s futures are preserved. “Agreements” as they are so appropriately called, may avoid costly litigation procedures, and provide the parents with the opportunity to freely discuss, negotiate, and formulate what they mutually believe to be a plan that will best serve the interests of their children.

The freedom to contract is an important legal principle and when utilized correctly, can be both an effective and efficient means of resolving issues. A recent North Carolina Court of Appeals case, New v. New, discusses the implications and consequences where parents utilize this right to resolve how to care for their child as they confront arguably the biggest step of any child’s life: attending college. In New, the parties agreed to pay off their children’s “ordinary and necessary” college expenses. When it came time to pay up, “ordinary and necessary” became a point of contention.  Language in any agreement is crucial, and given the general stance that parties are free to negotiate how they see fit, it is imperative that any ambiguities are either understood and accepted or limited and clarified during formation.  Here, the parties initially worked together, saving time and money in coming to an agreement, only to end up right back in a courtroom, litigating a language based issue that could have been potentially resolved at negotiations.

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Dear Carolyn,

My daughter just graduated from high school, and she is college bound.  Her father and I divorced three years ago.  Her father paid child support, but I understand child support is ending now as she is already 18.  I thought her father would surely pay (or at least help) with college, and he told me last night that he was not helping with college.  What can I do?  Our divorce agreement says NOTHING about college.

~ College Help Needed

 

Dear College Help Needed,

This is a most difficult situation for you and for your daughter.  Unfortunately, in this State, parents have no legal obligation for support after the child is 18 and out of high school.  Other States are different.  For example, in Alabama, the divorce court can order college if the child’s lifestyle and economic status would indicate that the parent would have paid for college in an intact family.  Also, in Massachusetts, as another example, child support continues to age 21.

The only way a parent can be bound to pay for college is in a private agreement.  At the time of your divorce settlement, the father and you could have entered into a private agreement, signed and notarized, that describes how the child’s college costs will be handled.  If you had such an agreement, the agreement would be enforceable by you.  Frequently, college is difficult to negotiate because Father’s feel that the child will “snub her nose” at the father if college is guaranteed by a contract.  You do not say anything about the daughter’s relationship with the father, and whether it is a close, loving relationship.

If the child’s financial aid application requires the father’s income, sometimes it is helpful to have a letter to accompany the financial aid application stating that the father will not participate in college expenses.  I have written several letters like this in the past for clients who have no expectation from a parent of college participation.

Good luck with college for your daughter, and congratulations on her high school graduation. Continue reading →