Articles Posted in Family Law

Getting a divorce in North Carolina can be a long and complicated process. First, parties must be legally separated for one year prior to filing for divorce. Once eligible to file for divorce, the process of finalizing everything (alimony, property division, child custody) can take substantially longer.

Before embarking on this emotionally draining and life altering path, there are a number of important things to know:

1. Make sure you are emotionally ready for what is about to happen. Couples divorce for a variety of reasons. Sometimes, deciding to walk from your marriage is the best decision you can make for yourself. But this is a decision which will have monumental consequences. When children are involved, the process of deciding custody and learning to co-parent can often be incredibly difficult. Before taking the first steps to divorce, make sure you are certain you want your marriage to end.

General Statute § 50-13.1 controls the filing of child custody cases in North Carolina. It provides as follows: “Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided.” Ordinarily, child custody cases are decided upon the “best interest of the child” standard. These types of cases are complicated and having an attorney to help present your case to the Court in the light most favorable to you is important. Child custody cases become even more complicated when the person seeking child custody is not the biological parent. In those cases, the best interest of a child standard is not the first question for the Court. This article is meant to provide a basic understanding of the rules for a nonparent or third party to seek custody of a minor child.

When a child custody case involves a parent and nonparent, the first question is whether the person seeking child custody has standing to file a lawsuit. “Standing” is the term used to describe who can file a particular type of lawsuit. The North Carolina Supreme Court has said “N.C.G.S. § 50-13.1 was not intended to confer upon strangers the right to bring custody or visitation actions against parents of children unrelated to such strangers. Such a right would conflict with the constitutionally-protected paramount right of the parents to custody, care and control of their children.” (Peterson v. Rogers, 337 N.C. 397, (1994)). This means, in regards to child custody, North Carolina courts have decided there are limits on who may file for child custody against a natural or biological parent. The Court further clarified the rules regarding standing of third parties to seek child custody by indicating that a third party who has no relationship with a child does not have standing to seek child custody. However, the Court has also decided a third party who has developed a parent-child relationship (even if not biological) does have standing to file for child custody. This means in order to even file for child custody, a third party must be prepared to show how the facts in their case establish a relationship sufficient to have standing.

Assuming a third party has legal standing to file for child custody, the next question is what burden of proof is required to win against a parent. North Carolina recognizes the idea that a parent has a constitutionally protected right to raising his or her child. Therefore, in a custody dispute between a parent and nonparent, the parent will automatically win child custody unless there is a showing that the natural parent is unfit or has acted inconsistently with the constitutionally protected status of a natural parent. If this showing is made, then the Court can consider the best interest of the child.

The decision on which State to file for custody is determined by the Uniform Child Custody Jurisdiction Act (UCCJEA). Whether North Carolina is the appropriate state to file for custody may depend on whether the Court is making a decision for the first time (initial custody decision) or whether a party is seeking to modify a decision which was already made (modification). This article is intended to provide a basic introduction to the UCCJEA. If you are considering filing for child custody or you have been served with papers from the other parent, contact Cristina Quantock today.

INITIAL DECISIONS—HOME STATE

If child custody has never been decided by a Court, then where an action should be filed is going to depend on the child’s home state. North Carolina law allows a court to make a custody decision if this is the state where a child has lived with a parent (or person who is serving the role of a parent) for six months prior to the filing. If there is no home state or another state has declined jurisdiction, then a custody action may still be filed in North Carolina under appropriate circumstances.

If you are getting a divorce, it is important to know what property the Court is likely going to give to you and what property your former spouse is going to get from the Court. North Carolina’s process of dividing property between spouses is known as equitable distribution. Equitable distribution is governed by North Carolina General Statute § 50-20. This article is meant to provide a basis understanding of the equitable distribution process in North Carolina. For more information, contact Beaver Courie Sternlicht Hearp & Broadfoot, P.A.

Once parties separate, either spouse may file for equitable distribution or property settlement. Equitable distribution is the processes by which the court divides property between spouses. Equitable distribution is a three step process. First, the court must classify all property. Second, the court must value the property. Third, the court distributes the property.

As to the first step of equitable distribution, the court must classify all property. North Carolina General Statute § 50-20 defines three types of property—martial property, separate property and divisible property. Below are the definitions of each per N.C.G.S. § 50-20.

Child custody is often a contentiously debated issue. When both parties live in the same town, determining where to file the custody complaint is easy. As time passes, parents often move to different towns or even different states. Deciding where to file custody then becomes a bit more complicated.

The decision on which State to file for custody is determined by the Uniform Child Custody Jurisdiction Act (UCCJEA). Whether North Carolina is the appropriate state to file for custody may depend on whether the Court is making a decision for the first time (initial custody decision) or whether a party is seeking to modify a decision which was already made (modification).

Assuming North Carolina is the appropriate state to file for custody according to the UCCJEA, the next question is where in North Carolina a party should file (venue). Assuming no other domestic actions are currently pending, North Carolina allows a party to file for custody “in the county where the child resides or is physically present or in a county where a parent resides.” This means a party may have more than one choice of where in North Carolina to file for custody.

There are two types of custody in North Carolina. The first is legal custody. This refers to decision making authority regarding major decision such as health, welfare and education of a child. Legal custody can be held by one parent (sole legal custody) or it can be held by both parents (joint legal custody). The second type of custody is physical custody. This refers to where a child will live and how often visitation will occur. Like legal custody, physical custody can be vested with one parent (primary custody) or it can be shared equally between both parents (joint custody).

In determining custody, the standard applied by the Court is “the best interest of the child.”  A Court considers numerous factors in making this decision such as the parent’s role in caretaking, the age of the child, the availability of each parent, and misconduct on the part of either parent. Since “best interest” is the standard, a change in circumstances will allow for modification of an existing child custody order.

Contact Cristina Quantock today for more information regarding child custody.

People will usually seek the advice of an experienced attorney when trying to defend against a restraining order. Did you know you can also contact an attorney when you need assistance in obtaining a domestic violence protective order? Coming in to see an experienced attorney who can assist you in drafting your complaint for a restraining order can have a substantial impact on whether the order is ultimately granted. Our attorneys can not only help you to navigate the process of a filing for an emergency protective order, but we can also appear in court to assist in trying to obtain a final order (which is usually for a period of one year).

North Carolina allows for two different types of restraining or “no contact”
 orders. The less common type of order is under North Carolina General Statute § 50C. This type of order is meant for people who are not in a domestic or personal relationship. While our firm can certainly assist in trying to obtain this type of order, the most common restraining order sought is a domestic violence protective order. These orders are controlled by North Carolina General Statute § 50B. Below is some important information to know about domestic violence protective orders:

A victim of domestic violence can file for a domestic violence protective order or “DVPO” whenever they have a “personal relationship” with the other party. North Carolina law defines “personal relationship” widely to include various types of relationships such as husband and wife, boyfriend and girlfriend, parents and children, those who have a child in common, and current or former household members. Assuming a personal relationship, a protective order may be sought as a result of bodily injury or attempted bodily injury, fear of continued harassment, and various types of sexual assault.

Version 2. People often assume a separation agreement is required in order to be legally separated. This is not correct. The law is very specific on the definition of legal separation. In order to be legally separated, a party must be physically separated with at least one spouse having the intent to end the martial relationship. In North Carolina, a couple may be legally separated without entering into a separation agreement.

While not required, a well drafted separation agreement can provide a number of benefits.

First, a separation agreement can address all matters related to a divorce including alimony, property division, child custody, child support, and a waiver of claims against third parties. Rather than leaving the decision to a Court, a couple can negotiate almost any term which is not against public policy.

Perhaps the most difficult part of a divorce or when a couple separates is deciding how the children will be cared for in the future. Child custody in North Carolina includes decision making authority regarding a child’s welfare (legal custody) and where a child will live (physical custody). The best case scenario is for parties to decide upon what type of custody arrangement will apply to their children. Regardless of whether a couple decides on custody for themselves or a Court decides for them, learning to co-parent is perhaps the most important step forward.

Co-parenting is a process where two parents work together to raise a child even though they are divorced or separated and no longer live together. While co-parenting is a simple concept, in reality it can often be difficult to master.

The following are a few important tips to consider in learning how to co-parent:

One of the most common misconceptions for family law clients is when they are “legally separated.” Some people equate separation with the drafting of a separation agreement and believe they are not legally separated until pen has been put to paper. Others believe they are legally separated once one person moves out of the master bedroom and into the guest room. In fact, North Carolina law is very specific on the definition of legal separation. In order to be legally separated, a party must be physically separated with at least one spouse having the intent to end the martial relationship.

This means there are two important requirements in order to be legally separated in North Carolina. First, the parties have to be physically apart. This does not mean a couple is living in two separate bedrooms on different ends of the home. To qualify, the couple must actually be living in two different homes or locations. Most commonly, one person leaves the martial home to live in an apartment somewhere else. Separation can also include, however, an overseas deployment or temporary change in duty station (so long as the second requirement is also met). Second, at least one person in the relationship has to have the intent to end the martial relationship. This means at least one spouse has decided the marriage is over. The law does not require communication of this intention or desire to the other spouse, but communication is certainly an easy means of proving the exact date of separation. While separation agreements are great tools to use in addressing many of the issues which will arise in a divorce, an agreement is not required to be legally separated.

Once a couple has been legally separated for one year, they may file for a divorce. A party may file for a divorce in North Carolina so long as one person has been living in this state for the last six months.

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