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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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by Carolyn Woodruff, North Carolina Family Law Specialist

Opioids are the growing problem in family law. Opioids and domestic violence do not mix and yet yield dreadful consequences. From Greensboro, North Carolina, a 28-year-old woman named Marie Aman will spend many years in prison for the death of a man, who may or may not have been her boyfriend.

The problem? She ran over him, and her opioid addiction played into it.

More tragically, she already has two children. What prospects do these two children have? Life in foster care? Being adopted? Hopefully, in prison she will beat her opioid addiction which is very hard to do, but where will her children be while she is in prison? I don’t know anything about her extended family, and perhaps there are fabulous grandparents out there.

For the life of Dona Auzins, her son is dead. Aman ran over the Auzins’ son after what appears to be a domestic dispute. The story of what happened is unclear, but whatever happened, Auzins is dead. He was found on the street having been hit by the automobile driven by Aman. Her story: She put her boyfriend out of her car to walk home. She planned to drive to her own home, and she says she suddenly say Auzins in front of her. He allegedly shouted: “What are you going to do? Run me over?”

The case came on for trial yesterday in Greensboro, North Carolina. Aman took an Alford plea to second-degree murder, which has a minimum sentence of approximately eight years. The Alford plea means she does not admit guilt. She is the only one alive who was there. What she says happened is that she and Auzins argued. Domestic violence. She saw Auzins later in the road in front of her, and she ran over him crushing the right side of his brain. He was delivered to Moses Cone and was brain dead. That’s when his mother found out.

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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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Leesa M. Poag, Attorney, Woodruff Family Law Group

Recently, the North Carolina Court of Appeals has taken steps to hold medical professionals accountable when they become involved in legal proceedings.  Family law attorneys in North Carolina are familiar with the process of a custody evaluation performed by a licensed psychologist.  The Court of Appeals recently held that these licensed psychologists can be disciplined by their licensing board if their performance of the evaluation negatively affects clients, or even attorneys involved in a case.

Dr. Annette Baker was appointed by the court to complete a custody evaluation in relation to a modification of custody hearing.  Dr. Baker initially met with both the mother and father involved in the case, as well as the minor children.

Initially, Dr. Baker was in communication with both parents, as well as the father’s attorney, Archie Futrell.  When the evaluation began to drag out past the point that the parties had expected it to be completed, the mother, father, and Mr. Futrell all began what would be a long and arduous process of attempting to communicate with Dr. Baker.  As the months dragged on and the evaluation still had not been completed, all parties involved became frustrated with Dr. Baker’s lack of progress and lack of communication.  Mr. Futrell attempted to contact Dr. Baker via phone, emails and letters but received no meaningful communication from her through any medium.            Continue reading →

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Jennifer A. Crissman, Attorney, Woodruff Family Law Group

               Timing, as they say, is everything, and if you are appealing an Order in North Carolina, this is particularly true. Slaughter v. Slaughter, No. COA16-1153 was decided by the North Carolina Court of Appeals on July 18, 2017. While there were multiple issues on appeal, the issue that sticks out is the timing and issues allowed on cross-appeal.

Cross-appeals are not a rarity. However, the Court had an issue of first impression on whether a cross-appeal should have been dismissed by the trial court. In Slaughter v. Slaughter, the trial court entered an Order Equitable Distribution on March 31, 2016, and Orders on Child Support, and Alimony on April 1, 2016. The husband filed a Notice of Appeal from the Alimony and Equitable Distribution Orders on April 25, 2016, within the thirty-day window for filing.

Wife filed a Notice of cross-appeal on May 3, 2016, from the Child Support Order and the Equitable Distribution Order. While Wife was within the ten-day window for filing a cross-appeal, Husband filed a Motion to Dismiss her cross-appeal regarding the Child Support Order. Husband argued that the ten-day window for filing a cross-appeal under NC Rule of Appellate Procedure 3(c) should not apply as Husband did not appeal the child support order. Husband’s Motion to Dismiss was denied by the trial court, which Husband appealed.

Husband’s argument on Appeal is that firstly, Wife was outside of the thirty-day window to appeal the Child Custody Order, and secondly, that since Husband had not appealed from the child custody order in his timely appeal, Wife should not be allowed to cross-appeal the Child Support Order. It was a matter of first impression if a Notice of Appeal is limited to only the Order specifically designated in the Notice, where a single proceeding has resulted in multiple Orders. It was also a matter of first impression if a cross-appeal is similarly limited to only the Order specified in the original Notice.

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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 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 →