Articles Tagged with children

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Divorce and its aftermath can be (and usually are) chaotic. Having kids and keeping track of all their things was tough enough, and now you have to coordinate your parenting with someone you may not even want to talk to, much less strategize with. And on top of it all, you have to manage everything on your own. Talk about a trial by fire.

Luckily for you, there’s an app for that. Or several. These apps can’t do it all for you, but they can make things easier.

SquareHub (Free)

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Whether you are a working parent or stay-at-home mom or dad, each role comes with a huge set of responsibilities. Being a family lawyer, I can only offer one perspective centered around achieving that work/family balance everyone always talks about. I’m not sure the perfect balance exists and have quickly learned that for me, it’s more of a day by day approach, kind of like March Madness – survive and advance. Below are some of the things I’ve learned along the way.

Be present. Whether you’re at work or at home, maximize your time at each by being present in the moment. When you’re at the office, try not to think of the disaster that is your house. When you’re at home, focus on enjoying family time and do your best to leave work at work.

There’s no place for guilt. Feeling guilty for missing time with your kids or feeling guilty for not being able to work late does nothing but cause more stress. There are so many things in life that cause us worry; this should not be one of them. Trust in yourself! It doesn’t matter if you work or stay home, your children look to you as their role model. They watch every move you make and listen to every word you say. Do not feel guilty for the role you have chosen as both provide your children with positive learning experiences!

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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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Benjamin N. Neece, Attorney, Woodruff Family Law Group

            When analyzing custody, the issue of who has rights to custody of a minor is commonly focused on the biological parents of the child.  In the eyes of the law, under the right circumstances, biological parents may be disfavored in congruence to “third party” individuals who assert rights to custody.  Some of the most common third-party custody claims are, unsurprisingly, asserted from either the paternal or maternal grandparents.  North Carolina and much of the south, is known for having strong family ties and deep communal roots where grandparents often play a large role in raising not only their children, but their children’s children.  These relationships are often supplemental to the relationships between biological parents and their children, but in some situations grandparents end up being the de facto “mommy” and “daddy” to the minor children.  Where biological parents display continued behavior of either unwillingness or inability to effectively parent their children, grandparents step in and seek legal intervention for the sake of the children.

When it comes to the law, courts have a duty to put the best interest of the children above all others.  Under the Constitution of the United States, the biological parents of a minor have a protected interest in the custody, care, and control of their children.  This is an incredibly high bar to overcome for third-party individuals seeking to assert custodial rights in opposition to those possessed by biological parents.  The law provides for a vague and widely discretionary test for resolving custody disputes of this kind.  While the interest of the children are intended to be promoted above all others, biological parents maintain an almost equally powerful interest that will more often than not prevail over that of third-party individuals unless it can be shown that the parents are unfit or have engaged in some “conduct inconsistent with their protected status.”  Courts do not provide a bright line test in determining what conduct constitutes a violation, but some examples are behavior that leads to neglect of the children, abandonment of the children, and at times, the voluntary surrender of custody of the children.  This behavior must have a negative impact on the child or constitute a substantial risk of such impact.

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By: Leesa M. Poag, Attorney, Woodruff Family Law Group

In a typical child custody case, the mother and father of a child are seeking the intervention of the court to settle their dispute over who should be granted custody of their child.  Though this is the situation most often facing family law attorneys throughout the Triad, the cases become more complex when one of the parties seeking custody of a child is not a biological parent of that child.

This is the situation that the North Carolina Supreme Court had to address in 2003 in the case of Owenby v. Young.  In 1989, Fred and Priscilla Young were married, and two children were born thereafter.  Four years after marrying, Fred and Priscilla divorced.  Upon their separation, the former spouses executed a separation agreement that granted Ms. Young primary custody of the minor children, and secondary custody to Mr. Young.

For seven years, the parties acted and shared custody of the children under this agreement.  However, in April of 2000, tragedy struck when Ms. Young was killed in a plane crash.  At this time, the minor children were 10 and 11 years old.  Following Ms. Young’s death, Mr. Young moved the children in with him and began to exercise sole custody of the children.

But this arrangement would not last long.  After the children had lived with their father for a few weeks, Ms. Young’s mother, Priscilla Owenby, filed a complaint with the court seeking custody of the children on both a permanent and ex parte basis.  An order was entered by the court that same day granting temporary custody of the children to Ms. Owenby.  Mr. Young then filed an answer to Ms. Owenby’s complaint and a counterclaim for custody of the children.  The case came on for hearing in the trial court in December of 2000.

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By: Jennifer A. Crissman, Attorney, Woodruff Family Law Group

            As contentious custody cases in the Piedmont progress, it is likely that a parent may be called “unfit.” In a legal context, this word has a specific meaning, and drastic consequences should the court find a parent unfit. In this second installment on standing to apply for custody, we will examine how a parent’s rights are affected when there is an allegation of “unfitness.”

The case of Raynor v. Odom is instructive when trying to determine whether a parent is “unfit.” Raynor v. Odom, 478 S.E.2d 655 (N.C. App. 1996). Raynor was decided several years after Petersen and discusses what analysis the Court should undertake when determining unfitness. The Raynor court held that although there is no specific list of findings that determines a parent is unfit, the court must look at the totality of the circumstances in determining whether a parent can care for the needs of their child.

The minor child in the Raynor case was removed from Plaintiff Mother’s care and temporarily placed with Intervenor Foster. When Foster gained temporary custody, she took the minor child to have a pre-school assessment. At the assessment, it was discovered that the child had an articulation disorder, and was not as advanced or matured as many of the child’s contemporaries.  This fact was supported by the preschool screening report, an articulation evaluation, and a language therapy initial treatment plan. The trial court found that the child’s lack of development was a result of Plaintiff Mother not providing motivation, opportunity, or encouragement for the child’s normal and healthy development.

The trial court went on to catalog facts that demonstrated Plaintiff Mother’s unfitness to care for her child, including:

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By: Jennifer A. Crissman, Attorney, Woodruff Family Law Group

            If you have been involved with a highly contentious custody case in the Triad, you know that family members will start coming out of the woodwork to ask for custody of the minor children. This phenomenon is even more prevalent when the parents are not adequately caring for their children. This multi-part series will examine who can have standing to apply for custody of the minor children under North Carolina law, and the analysis the Court must follow. In part one of our series, we will examine the Constitutional Rights of the biological parents, which is the bedrock for all subsequent analysis by the Court.

The seminal North Carolina case on parents’ constitutional rights is Petersen v. Rogers, 445 S.E.2d 901 (N.C. 1994). At the outset, the Petersen court recognizes that the right to conceive and raise one’s children is an essential basic civil right which is far more precious than property rights. The Court then discusses in depth both the U.S. Supreme Court’s decisions regarding parental rights to custody, as well as North Carolina case law.

With regard to U.S. Supreme Court decisions, the Petersen Court notes that the integrity of the family unit has been recognized as a fundamental right protected by the U.S. Constitution. The Supreme Court has held “It is cardinal with us that the custody, care and nurture of the child reside first in the parents…”. Prince v. Massachusetts, 321 U.S. 158 (1944). This right has been protected both by the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, as well as under the Ninth Amendment by the U.S. Supreme Court.

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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 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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