Child Custody in North Carolina: Factors Considered by the Family Courts

By Jim Warren

Some aspects of family law are fairly black-and-white, such as the formula used by North Carolina Child Support Enforcement to determine child support obligations, while in other areas, judges are granted wide discretion under statute to determine matters as they see fit. In a recent article, we outlined how the courts consider multiple factors when determining alimony awards.

Judges also have wide discretion in one of the most important—if not THE most important—aspects of a divorce case, child custody. The guiding principle of North Carolina statute for judges is the best interests of the child. The courts must consider all the relevant facts to determine custody and visitation. These can include, but are not limited to, past parental involvement, willingness to involve the other parent, support network, availability, attitudes, residence, physical and mental health, and willingness to put the children first.

Judges may also review evidence of the lifestyles of the parents and their respective friends and acquaintances to whom the child will be exposed. If a parent, upon separation, has entered “mid-life crisis” mode fueled by late nights and alcohol use, that parent may not be deemed as worthy a custodian as the parent who maintains a calm, quiet home where the child can grow peacefully. The polar star that guides the Court’s decision is not what is best for mom or dad, but what is best for the child.

There are also relocation considerations. Has one parent, upon separating, moved hours away? It may not make sense for the court to award any custody to the faraway parent—which would remove the child from safe, familiar people and surroundings.               

Another concern, which we’ve written about in this space, is the custodial rights of grandparents. Most grandparents adore their grandchildren, and sometimes their access to their grandkids may be threatened by the acrimony between the separating spouses. As we’ve written, it’s important for the grandparents to formally protect this while a custody action is pending and before the judge issues a custody order.

Matters of child custody are some of the most sensitive areas we explore with our clients. You can rest assured that we will be a champion for your rights and interests, as you seek to protect the best interests of your children. Contact us at Warren Family Law to work for a better future for your family.

 

Hiring a Child Support Lawyer Can Be Affordable

By Jim Warren

There’s a common perception that attorneys are expensive. Relative to many other service providers, perhaps we are.

But what we attorneys do for a living typically does merit a worthy fee, as long as we’re providing value for what you pay. It’s important for clients to know how attorneys provide their value. I’m often asked about affordability, especially in matters of tighter scope. This makes sense, as folks might expect a separation, divorce, and child custody case to take more time and thus more money.

But in matters of more limited scope, such as child support determination and enforcement, can attorneys be affordable? While the answer to this is obviously relative to your income and assets on hand, the answer from a value standpoint is certainly “yes.”

Attorneys typically charge more over time, as we become more experienced. For example, you should expect to pay a higher hourly rate and/or higher fixed fees to an experienced attorney over someone fresh out of law school. Attorneys who have practiced longer typically have learned the ins-and-outs of the applicable laws, courts, judges, fellow attorneys, and know people, and this level of expertise has tremendous value.

With regard to matters of more limited scope, while we have practiced for more than three decades here at Warren Family Law, our fees, especially in terms of value for money spent, don’t just reflect that experience. In addition to our experience factoring into our rates, you’ll also see rates that reflect our low overhead, efficiency, and our ethical approach to what constitutes a fair charge on your bill. While we litigate your case, please know that we treat your money like it’s our own.

Many of our competitors, even those with much less experience and documented success in court, charge higher fees, as they are free to do. But I welcome you to experience our approach. While we are a small firm, we are able to provide a high-touch client service experience. We pride ourselves on educating you throughout the course of your case.

 

 

Grandparent Visitation Rights in North Carolina

By Jim Warren

When spouses with children decide to end their marriage, there are many decisions to be made and often many emotions come into play. Often, grandparents find themselves on the outside looking in, unaware of any options they may have currently or may have relinquished due to inaction. It’s a shame when loving grandparents no longer have access to their grandchildren due to acrimony or some other factor between their child and that child’s former spouse.

If you are a grandparent of children of a marriage that’s ending, it’s important to know that you have limited rights and a limited window to protect those rights in many cases.  However, if properly pursued by grandparents, courts can have the opportunity to consider the positive role that grandparents play in the lives of their grandchildren when making decisions about the children’s custody and visitation during separation and divorce.

Grandparents have the right to pursue custody under the law in the state of North Carolina.  However, in order for a grandparent or any third party to prevail against a natural parent, they must show by the greater weight of the evidence that the natural parent(s) has acted in a manner contravening their constitutionally protected right as a parent(s).  Occasionally grandparents do need to pursue custody of their grandchildren.  However, in many cases grandparents are not seeking custody of their grandchildren but attempting to protect their right to be a part of the lives of those grandchildren.  For instance, there may be some instances where for whatever reason they do not get along with their child and he or she may not want them to have contact with grandchildren that they have seen on a regular basis previously.  Another possibility is that their child is not going to be able to exercise visitation with the children at issue and the grandparents do not want to lose contact with those children.

In the state of North Carolina if grandparents want to have visitation with their grandchildren, they must file a motion to intervene in a pending custody case.  “Pending” means a case currently in court between the mother and father in which a final order of custody and/or visitation has not been entered.  This is the limited window of opportunity the grandparents have to become involved in the lawsuit.  They cannot file a motion to intervene after a final order has been entered.  They cannot file an action for visitation with grandchildren if no action is pending between the parents.

If a motion to intervene is timely filed it is up to the judge to decide whether or not grandparents will be allowed to intervene in the action to pursue their visitation rights.  This request is most often granted by our courts and then it will be up to the presiding judge to decide what visitation the grandparents are going to be able to have with their grandchildren.  The important thing is that once they are allowed to intervene they cannot be totally cut out.

The bottom line here is that if you’re a grandparent to children who are going through the divorce of their parents—and you have reason to doubt that your connection to the children will be maintained—it’s important that you take action immediately. At Warren Family Law, we take great pride in helping to keep extended families together, especially grandparents and their grandchildren, in the event of separation and divorce. Give us a call to know your options and get the peace of mind you deserve.

If you’re a grandparent with only the best interests of your grandchildren in mind, it’s very important to contact us early so you can have an informed decision on what to do next in order to maintain your close relationship with your grandchildren even after their parents’ divorce.

Should I Consider a Prenuptial Agreement?

By Jim Warren

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Nearly everyone has heard of prenuptial agreements, but very few people understand them or know people who have them.  As with any contract, it’s important to know when prenuptial agreements may be a good option and to understand how they work.

Here in North Carolina, prenuptial agreements (also called “prenups”) are governed by Chapter 52B in our General Statutes.  A prenuptial agreement is a contract between two people who are planning to get married, and the purpose of a prenup is to address in advance any financial issues such as alimony and division of marital property and debts in the event of a divorce.  Actually, such contracts can be entered into after marriage, too.

In a prenuptial agreement, the parties to be married can agree to waive the right to pursue spousal support in the event they separate and divorce.  In other words, they can give up the right to pursue financial assistance from the other even if they would otherwise be able to receive spousal support.  If the parties agree to waive the right to pursue spousal support in the event of a separation and later divorce, they give up the right to pursue post separation support (temporary alimony) and alimony even if the other party is at fault in the breakup of the marriage.  The parties can also agree in a prenuptial agreement to limit their total exposure to alimony.  For instance, they can agree to limit both the amount and duration of any payments that might be awarded in the event of a separation and divorce.

In a prenuptial agreement parties can specify what is their separate property and provide how property acquired during their marriage and prior to their separation will be divided.  This can be done strictly along the lines of anything acquired in the name of one spouse will be that spouse’s or a prenuptial agreement can provide that marital property will be divided in certain percentages.

Prenuptial agreements are contracts.  However, to be valid in the state of North Carolina, in addition to both parties signing the agreement, their signatures must be verified by an officer authorized to give oaths such as, but necessarily limited to, a notary public.  Furthermore, in order to be valid, the agreement negotiated between the parties needs to be free of duress, coercion, undue influence, or fraud.  Both parties should give a full and fair disclosure of all of their assets and those complete disclosures should be included, if not in the agreement, then as exhibits to the agreement.

While you can address important financial concerns that will arise if the marriage fails in a prenuptial agreement you cannot provide in a prenuptial agreement what will happen with regard to any children born to the marriage.  Issues regarding the children such as child custody, visitation, and child support cannot be provided for in a prenuptial agreement.  Those are issues that will have to be worked out, if at all, between the parties at the time of or following their separation.

If you are engaged and thinking that a prenuptial agreement would be right for your situation, it’s important to seek the advice of an attorney focused on family law.  In our three decades of practice at Warren Family Law, we’ve helped many people make plans for after their marriage ends through divorce or makes plans for the possibility that the marriage may result in a separation and divorce, and we can help you, too.  Call us today to get started.

Child Support Enforcement in North Carolina

By Jim Warren

In North Carolina, child support is calculated in many cases pursuant to the North Carolina Child Support Guidelines.  If the combined adjusted gross income of both parties is less than $25,000.00 per month, the court, with few exceptions, is required by law to use the guidelines in calculating child support. 

Factors used in determining the amount of child support include, but are not necessarily limited to, the combined adjusted gross income of the parties, work related child care and who pays it, and health insurance premium costs attributable to the minor child(ren) and who pays it.  In some cases, the court considers extraordinary expenses in the calculation of child support. For example, when the court considers where the parents have agreed and the children have been attending private school, private school tuition and expenses can also be included in the calculation of child support. 

Occasionally, the court considers extraordinary expenses such as the expenses incurred because of a child with special needs.  Child support in our state is payable until the child attains the age of 18 or graduates from high school, whichever event occurs last, but in no event beyond the child’s 20th birthday.

Individuals seeking child support can pay a small fee and can thereafter use an agency of the Department of Health and Human Services called North Carolina Child Support Enforcement (CSE).  North Carolina Child Support Enforcement can assist a parent in the establishment of child support and in the enforcement of a child support order.  The primary enforcement remedy used concerning child support is the contempt powers of the court.  A person who is ordered to pay child support who is found by the court to have had the ability to make the payments when he did not can be found in contempt. 

The court can include fines and even incarceration.  Payments not made by an obligor do not go away.  The court can only reduce child support back to the filing of a motion for a reduction by the obligor.  Other enforcement remedies include seizure of the bank accounts, intercepting tax refunds, intercepting unemployment payments, intercepting disability payments, property liens, and even suspension of the privilege to operate a motor vehicle in the state.

If you have never pursued child support or if you are not receiving child support due you under an agreement or order, you should protect your rights and those of your children by seeking help.  We are here to assist you in both the establishment of a child support order and the enforcement of agreements and orders for child support.  Give us a call and begin your journey to a more stable financial future.

 

           

Terminating Alimony by Proof of Cohabitation

Terminating Alimony by Proof of Cohabitation

In North Carolina family courts, judges award alimony payments—either by lump some or installments—to a “dependent spouse” payable by the “supporting spouse.” In simplest terms, we define a dependent spouse as the individual who makes less money within a marriage, while the supporting spouse typically earns more money.

Charlotte Divorce Lawyers Aren’t All the Same

Charlotte Divorce Lawyers Aren’t All the Same

People often think that lawyers, by practice area, are all the same, that we’re all interchangeable. That’s not true in any practice area, and I know it’s especially not true in the area where I practice, family law. Charlotte divorce lawyers are definitely a diverse bunch.

What Is Post-Separation Support?

What Is Post-Separation Support?

Unlike child support, which the court determines with a calculator, judges have greater discretion and thus flexibility in awarding post-separation support.  North Carolina courts will award spousal support upon separation to what is termed a “dependent spouse.”

Protect Yourself from Domestic Violence

Protect Yourself from Domestic Violence

Violence against women happens all too often in our society. According to the National Coalition Against Domestic Violence, one in three women are victims at the hands of an intimate partner in their lifetimes.