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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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Leesa M. Poag, Attorney, Woodruff Family Law Group

Boy meets girl. They fall in love.  Before you know it, he’s down on one knee with an expensive diamond ring in his hand.  With Valentines Day quickly approaching, it is a scene that is sure to play out all across the Triad.  But what happens when the relationship ends before the wedding bells have even had a chance to ring?  When instead of meeting with a wedding planner, the couple is turning to a family law attorney for advice.

As difficult as a broken engagement can be on a couple, the heartache and hard feelings only grow more intense when the formerly-engaged couple cannot agree on who should keep that shiny souvenir of the marriage that was never meant to be. When the plan changes from walking down the aisle to walking away, there is still that lingering question that must be answered – who gets to keep the engagement ring?

Under the early common law, Courts allowed these jilted fiancés to recover monetary damages when the wedding was called off under a claim of breach of promise to marry.  Though the legal system seems to have realized that you can’t put a price tag on a broken heart and distanced itself from these types of claims, the question of the engagement ring is still a remarkably common dispute facing the courts today.

Should the person who initially purchased the ring be entitled to its return?  If it was given as a gift, should the recipient be allowed to keep it?  The majority of courts have held that the answer to those questions comes down to the intention of the giver.

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Dana M. Horlick, Attorney, Woodruff Family Law Group13062458_1042739802458603_2436945721037467362_n-214x300

 

Directly after the holidays happens to be one of the busiest times of the year for divorce attorneys when it comes to divorce filings. The increase in divorce filings is a trend that is seen nationwide, including here in Greensboro, North Carolina. According to the American Academy of Matrimonial Lawyers, there is typically a spike of 25% to 30% in divorce filings every year in January. There is a similar trend in the United Kingdom, where one in five couples plan to divorce after the holidays.

Now when you think about it, this trend makes sense, given the nature of the holidays themselves and the sometimes adversarial nature of the divorce filings themselves. There are several factors at play when it comes to the uptick in divorce filings right after the holidays and at the start of the new year.

One thread deals with the holidays as a precipitating factor towards a divorce filing. The holidays may be a stressful time for couples, especially when there are already difficulties in the marriage. There is the financial stress of getting through the holidays and purchasing the presents. There is also the factor of spending time with your in-laws or just having an increased amount of family time. You might be in the house with your partner for an extended period. If there are problems already present in the marriage this can become an issue; even without pre-existing problems, this may place a strain on the relationship. Having to put on a happy face for your relatives and your children can also be very stressful.

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Child

Life after divorce can be difficult and made even more challenging when custody disputes are involved. North Carolina law was designed for the reality that people’s circumstances can change from time to time, and they may need to modify existing custody orders accordingly. When parents cannot agree on which changes are appropriate, the court will decide whether a modification is necessary based on substantial changes in circumstances.

Substantial changes in circumstances can include serious changes, such as the loss of a job, remarriage, or relocation of one parent. Of course, there could be other factors that the court deems ‘substantial’ as well. Any time that a parent claims that a substantial change in circumstances has occurred, the court will likely require proof and documentation of that change.

In the case of Hibshman v. Hibshman, a judge initially entered an order changing primary custody of a couple’s children from the mother to the father, but the judge did not first decide that there had been a substantial change in circumstances.

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Hardin v. Comm’r, T.C. Memo. 2016-141, 2016 WL 4006806 (2016)

Facts: Husband and wife were married in During the marriage, the husband was partner in a law firm, and he also ran a sports management business. The wife was owner and president of a financial planning company. The husband was not involved with the operation of the wife’s business.

For 2009 and 2010, the parties filed joint tax returns.

Husband and wife were divorced in Missouri in 2011. Their divorce decree incorporated the settlement agreement, which gave each party all of the assets and liabilities of their respective businesses, and required each party to hold the other harmless from all business debts. There is no suggestion that the wife claimed any form of abuse in the divorce case.

The IRS examined the 2009 and 2010 returns, and found deficiencies. Some of these deficiencies arose from the husband’s law firm, and some arose from the wife’s financial planning business. Each party filed a petition for innocent spouse relief. The IRS agreed that each party was entitled to relief from liability for tax problems attributable to the other’s business.

The wife then filed an additional petition for innocent spouse relief from taxes attributable to her own business. In this petition, she argued for the first time that she was abused by the husband.

Issue: Is the wife entitled to innocent spouse relief from taxes arising from operation of her own business?

Answer to Issue: No

Summary of Rationale: The only issue before the court was discretionary innocent spouse relief under 6015(f). The seventh threshold condition normally requires proof that the tax liability is attributable at least in part to property or income of the nonrequesting spouse. The taxes at issue were on the wife’s business, so the seventh condition was facially not met. Continue reading →

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Dana M. Horlick, Attorney, Woodruff Family Law Group

Whenever you become a party to a lawsuit, whether you are the Plaintiff or the Defendant, there are deadlines imposed by the Court, by statute, and by the Rules of Civil Procedure that are important to follow. There are deadlines whether you are in Guilford County, North Carolina or Fulton County, Georgia. Missing such a deadline could severely impact your rights.

For a real life celebrity example, let’s look at Phaedra Parks – star of Real Housewives of Atlanta – and her jailed husband, Apollo Nida. The couple were married in 2009 and separated in 2014.

On December 1st of this year, Apollo Nida filed a Complaint against Phaedra Parks, seeking a divorce, along with joint legal custody of the minor children and an equitable division of all of the personal property, assets, and marital debts.

However, back in November of this year, the parties were granted a divorce, after Nida failed to respond to Parks’ divorce petition. Parks filed for divorce in March of 2015 and subsequently was divorced in November. The judge also awarded Parks custody of the parties’ two children. Nida will have visitation rights once he completes the eight-year prison sentence he is currently serving for bank fraud and identity theft.

Now consider if this situation happened here in Guilford County. Once the parties remain separated for one year, either of the parties can file for divorce, which Parks does. Once the Plaintiff has effectuated service of the divorce complaint on the Defendant, the Defendant has 30 days to respond. The 30-day deadline is according to the North Carolina Rules of Civil Procedure. To extend this deadline, the Defendant can file a Motion for Extension of Time and receive an extension, as long as the deadline has not already passed. Now in the case of Parks and Nida, Nida never filed an Answer and never sought an extension of time.

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Jennifer A. Crissman, Attorney, Woodruff Family Law Group

           JAC-200x300 I must confess, as a family law attorney I cannot help reading about celebrity relationships. I find that even though it feels like celebrities are untouchable and have very different lives than our own when a celebrity relationship ends the same scenarios arise. Separation and divorce are the great equalizers, and no one is immune. If you have followed the recent celebrity news, you may have seen that Brad Pitt filed a motion this month asking the court in California for an emergency hearing on sealing the court file containing the details of his separation from Angelina Jolie. His argument was that he wanted to protect the couple’s six children from intense worldwide scrutiny.

The court denied his request for an emergency hearing, but there will be a hearing in January on whether to seal the file. As an observer, you may wonder why the court would not grant an emergency hearing on such a motion. It seems like a reasonable request; a parent urgently wants to protect his children’s privacy from nosy reporters, paparazzi, and onlookers. However, this is not enough for the court to grant an emergency hearing or to seal a file.

With regards to sealing a file, the public has the right to view court records which arises under both the common law and the First Amendment of the US Constitution. The rationale for this right is that the public monitoring of the judiciary is key to a functioning democracy. If judges were able to seal court files and close courtrooms freely, the public would have no way of monitoring the behavior of the judicial branch. Although the general presumption is that court records are open for public inspection and viewing, there are some ways to get a court file or at least portions sealed.

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DocumentsIf you have an existing child custody order that you want to change, the process can be quite complex. A North Carolina parent cannot just unilaterally change any type of child custody agreement. At the Woodruff Family Law Group, our seasoned family law lawyers can help you determine if your circumstances will permit a child custody modification. With years of experience, we are well versed in this are of law and can put our knowledge to use in your case.

In Pulliam v. Smith, the North Carolina Supreme Court held that the evidence supported the trial court’s decision to modify an out-of-state child custody judgment and an award of exclusive custody to the former wife as a result of the former husband’s homosexual relationship and activities.

The court highlighted that a change in a custodial parent’s residence is not itself a substantial change in circumstances justifying a modification of the custody order. However, if the location is detrimental to the child’s well being, the change in residence of the custodial parent is a substantial change in circumstances and justifies a modification of custody.

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By: Jennifer Crissman, Woodruff Family Law Group

            JACAs a parent, it is a nightmare even to imagine your child being harmed. But for some families in the Piedmont, this is a grim reality. The scenario turns even darker when there are allegations that your spouse harmed the child. This places the parent in a terrible position: trying to protect your child from harm, and to reconcile how your spouse could be responsible for the alleged conduct. The parent may not have been aware the abuse was occurring, but may still be called to testify about the facts and circumstances of the alleged abuse either in a juvenile proceeding, a custody trial or criminal proceedings. What is the innocent parent to do? The natural inclination may be to stand mute to try to hold the family together. However, this is not an option.

Those who have watched television courtroom dramas are at least somewhat familiar with the concept of spousal privilege. The general idea is that one spouse cannot be compelled to testify against the other spouse, that private communications made during the marriage are confidential. However, there are nuances to the privilege and how it is applied, especially as it relates to the abuse of a child. Due to the case of State v. Godbey, it now appears that the spousal privilege is not applicable in any North Carolina court where there are allegations of child abuse. State v. Godbey, No. COA15-877 (N.C. App. 2016). Spousal privilege is not permitted in juvenile, civil and criminal courts where there are allegations of child abuse.

Typically juvenile cases begin when a report of suspected abuse or neglect is made to the Department of Health and Human Services. This report triggers an investigation into the allegations. After an initial investigation, the allegations will either be substantiated or unsubstantiated. If the claims are baseless, then the case is closed out with no court action. If the allegations are substantiated there could be a hearing in Juvenile Court to determine whether the juvenile is abused, neglected and dependent, or even criminal charges filed. This, in turn, can affect civil custody cases involving the child and the parents.

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