Child Custody

Child Custody Cases in Iredell County, NC are Hard Enough, but What about the Dog?

Published on: September 11, 2012 | On behalf of Arnold & Smith, PLLC

As everyone knows, child custody is one aspect of divorce that can cause terrible bitterness and turn an otherwise amicable split into a drawn-out, expensive battle that leaves everyone battered and bruised, including the kids. The only good thing about child custody disputes is that they operate on an established set of laws and case precedents.

As discussed in an article on LATimes.com, determining who should get custody of the family pet is a totally different story. Pets are still viewed as property by the courts, even though many couples regard them much more personally. Because there are very few rules when it comes to deciding who should get custody of the pets, there is a wide variance among judges. Couples cannot assume a judge will make the decision based on who brought the pet into the relationship, nor can they count on the same elaborate factors being assessed that are considered when deciding child custody. In the olden days some judges would rely on “calling contests,” in which the spouse who could get the dog to come to them won custody. Far from scientific, courts have moved away from that process today.

So what are the options for spouses caught in a battle over your pet pooch? According to the LA Times, one possibility is to do what people with human children do, and work out a joint custody agreement. With a little extra work, both of you can keep taking your pride and joy to the dog park. Another benefit is that with shared custody you can always ensure there is someone around to look after your dog if you have to leave town.

This obviously won’t work if you and your ex will be geographically separate. If that’s the case, then you will need to do an honest evaluation of who is better equipped to take care of your pet. Who will be away from home more, which one of you has traditionally done most of the caretaking and, if you do have kids, how will child custody affect the decision.

Drug Testing and Nasty Custody Disputes in North Carolina

Published on: September 4, 2012 | On behalf of Arnold & Smith, PLLC

Recently, a family law expert, Henry Gornbein, wrote an editorial for the Huffington Post dealing with the effect of medical marijuana laws on custody disputes. The article concluded with a discussion about how even in states where medical marijuana is legal; a spouse possessing a valid medical marijuana card should still refrain from partaking while in front of their children. Gornbein went so far as to suggest that custody schedules should be altered to take into consideration times where the one parent would be using their medicinal marijuana.

The article is an interesting one in the context of how criminal law has collided with family law. The article also brings up the role of drug testing in North Carolina divorce cases. Drug testing can have a profound impact on some custody cases in the state. Given that North Carolina is a state where all marijuana use is illegal, a positive drug test can be the difference between custodial parenthood and supervised visitation. It’s absolutely the case that no family law court in North Carolina would design a custody schedule around a parent’s marijuana habit.

Parties might request a drug test to provide evidence of habitual drug use in order to attain a fault divorce. One spouse may also request a drug test if there is a heated custody battle and drug use has been alleged. They may be after sole custody of the children and are hoping their ex will fail a drug test. Such failed drug tests can also be a basis for altering a custody agreement.

Divorce Law Firms in Charlotte, NC :: Back to School Advice for Divorced Parents in North Carolina

Published on: August 14, 2012 | On behalf of Arnold & Smith, PLLC

It’s hard to believe that school is about to begin in Charlotte. The start of school also means the start of after school and weekend activities. This time of year can be particularly stressful for parents who are going through, or have recently gone through, a divorce, as the family adjusts to visitation with the kids’ new, and likely busier, schedules.

Getting a child back to school is hard enough, but if you are co-parenting with your ex for the first time it can be even harder. Here are some tips from the Huffington Post for how to make navigating back to school more comfortable for both parents and, more importantly, the child.

1) The all-important backpack – If it is the first year the child is going through a co-parenting situation they may feel like they don’t have their own space. Moving from one house to another can leave them feeling insecure. Their backpack can be the one place that is theirs. Help them customize it, and assure them no matter where they go they can have it with them and whatever they chose to keep inside. This will offer some security and consistency in a changed setting.

2) Encourage your kids to keep it simple – Your child may not know how to explain their new situation to their friends. They may not feel it’s “normal” and they may have some degree of anxiety when families are brought up. Sit down and talk to your child, encourage them to keep it simple when explaining things to their friends and that it’s okay that they live with mom some days and dad others.

3) Be involved with homework – Helping your children with homework is a great opportunity for a parent. It can help you bond, and give you an opportunity to teach lessons beyond spelling. Even if you are the non-custodial parent try to see if there’s a way to stay involved in your children’s schoolwork and ask them if there is anything you can help them with when you are able.

4) Communicate directly with your ex – Do not use your child as a messenger to your former spouse. Not only can kids forget important details that may not be of interest to them, but it also puts them in an odd situation. E-mail can be a great medium for this, it avoids awkward phone calls, gives you time to edit yourself and provides a written record that no one can later claim that they didn’t know.

Modification of Child Custody Lawyers in Charlotte, NC :: How does Child Custody Modification Work in North Carolina?

Published on: August 7, 2012 | On behalf of Arnold & Smith, PLLC

The process of dealing with a child custody modification depends on whether the original custody plan is part of a separation agreement or a court order. In case of the former, either parent can request for modification in custody in writing to which the other parent may or may not agree. When the other parent does not agree, the parent seeking custody modification can then take the matter to court.

If, however, child custody is part of a court order, the parent seeking modification needs to file a motion to modify the custody order with the court. It is possible even if the custody plan is part of a court order that the parents can reach an agreement on their own and then go to the judge for final approval. This is known as a consent order and is often the best approach if the parties are on good enough terms to communicate with one another.

North Carolina courts will consider modification of a child custody order only if the parent requesting the custody modification is able to prove a substantial and material change in circumstances. Only after the court has been satisfied that the change in circumstances is both substantial and material, will it then move on to consider what is in the best interest of the child. The reason for this is to prevent constant back and forth motions to change custody which would be destabilizing for the children. It also helps prevent the court from becoming overburdened with frequent and repetitive modification requests.

One such substantial and material change would be if the custodial parent is relocating to another state and the move will impact the child’s life. The court is then empowered to modify custody and visitation with a view towards the child’s best interest. Some courts switch custody from one parent to the other, although the increasingly common approach is to ask the parents to work out a plan under which both parents may continue to have significant contacts with their children.

Adoption Laws in California to Allow Multiple Parents?

Published on: June 21, 2012 | On behalf of Arnold & Smith, PLLC

According to an interesting article on Yahoo, California, a state already grappling with a wide array of legal issues surrounding alternative families, has added one more to the mix. The most recent bill, SB1476, would allow children to be legally given more than two parents.

As written, the bill would apply equally to men and women, regardless of whether they were in homosexual or heterosexual relationships. The bill’s sponsor, State Senator Mark Leno, D-San Francisco, says that the bill is meant to bring the state into the 21st century and acknowledge that complicated family situations exist. He says the state must recognize that “there are more than ‘Ozzie and Harriet’ families today.” The bill has already passed the state Senate and now awaits a vote in the state Assembly.

Senator Leno said he first realized there was a problem with the current system last year when he read about an appellate court placing a girl in foster care after her legally married lesbian parents were unable to care for her. The child was taken into state custody after one of her mother’s was put in prison and the other was hospitalized. The court was not allowed to appoint the girl’s biological father, with whom she had a relationship, as a legal parent. Something that Leno believes would have greatly benefited the welfare of the child.

The law would require that parents qualify under all legal standards and agree on custody, visitation and child support before a judge could divide up responsibilities. If California passes such a law it won’t be alone, already Pennsylvania, Delaware, Maine and the District of Columbia have laws on the books recognizing more than two parents.

The bill has some strong opposition. Glenn T. Stanton, from the group Focus on the Family, argues that though the bill appears to advocate for children, it is actually a tool to allow adults to create what he calls “radical families.” He says that children are best cared for by one mother and one father and “this bill would only take us farther down the trail of more ‘experimental families’ that fulfill adult desires, but consistently fail our children.”

Divorce Advice for Talking with Your Children about Separation and Divorce

Published on: June 14, 2012 | On behalf of Arnold & Smith, PLLC

If you’re facing the prospect of divorce one of the hardest things to deal with is likely how to tell your children. You worry how they’ll handle the news and fear that they will think it was in some way their fault. You may worry that they’ll lose the sense of stability they’ve come to depend on. It’s important when the time comes to sit them down that you both convey that you will still be there for them, no matter what happens in your marriage. The following are some tips on how to best handle a very difficult conversation:

• Agree on what you’re going to say
The two of you should find time to sit down before talking to the kids to decide on what you are going to say. Get your story straight so that no one contradicts each other. You don’t want to start arguing in front of the kids, you need to be a united front. If you need help communicating effectively as your relationship has broken down so far, consider going to a therapist or a religious leader who can serve as mediator.

• Tell them as a couple
If possible, you and your spouse should tell the children together, even if it’s hard. You may have a great deal of anger towards your spouse, but it’s better for the kids to put that aside and work together during this moment. Convey to them that though the marriage is ending, you will both work together and cooperate as parents. Make sure they know that you’ll both remain active in their lives.

• Be nice to each other (or at least pretend)

It’s important that when you talk to the kids that neither of you blames the other one for the dissolution of the marriage. Don’t attempt to curry favor with the kids, you don’t want to put them in the middle and make them feel like they have to choose sides. Both behaviors are unfair to your kids and can cause lasting emotional harm. It can also blow up in your face and make the child feel closer to the maligned parent.

• Be honest, but keep comments age appropriate
Be honest but remember the children’s ages when telling them the news. Avoid sharing any personal details about the split, they don’t need to know the nitty gritty details of your marriage. Tell them only as much as they need to know, no more. Don’t pretend everything will be the same, prepare them for some of the changes to come and don’t make promises you can’t keep. Make sure to explain that the divorce has nothing to do with them, this is crucial.

Charlotte Divorce Tips – Protecting Privacy (According to The Huffington Post)

Published on: May 15, 2012 | On behalf of Arnold & Smith, PLLC

As you prepare to go through the sometimes tumultuous process of divorce it’s a good idea to make sure your soon-to-be ex isn’t snooping on some of your most private information. There are important reasons why you should avoid sharing your new life with your spouse. Some suggestions you might consider to help this natural separation along include:

• Set up your own bank accounts. One of the very first steps you should take as a newly single individual is to open your own bank accounts. It’s a place to spend money without being watched and to deposit your paychecks without allowing access by the other party.

• Apply for your own credit card(s). Establishing your own credit history is important following a divorce, as is having access to a line of credit that isn’t connected with your ex. This is also a way to keep purchases private.

• Review your “one click” purchasing arrangements. Many retailers make it easy for repeat customers to buy items without having to reenter credit card information. This is great most of the time, but not if your ex is the one racking up the bills. Create your own accounts linked to your own credit card that your spouse does not have access to.

• Get a new cell phone. Your ex doesn’t need to read through all the numbers you dial in a given day or see who you’ve been texting (including lawyers, accountants, even investigators). Splitting apart your cell phone plan is a great way to get a little more privacy.

• Change your online passwords. Many people know each other’s passwords for most if not all accounts. This can include Facebook, email, online banking and shopping. While that’s great when you’re happily married, it can create a multitude of headaches during a contentious divorce. You want to make sure that you alone control your online presence and to do that you’ll need to change your passwords to something your spouse is unlikely to guess. Don’t overlook all those little accounts you never think about. Your ex may remember them very well.

• Change your social media privacy settings. Thing can be made much easier if your ex isn’t forced to see pictures of all the fun you’re having without him or her. Keep your new life quiet and out of your ex’s News Feed.

Virtual Child Visitation brings North Carolina Parents and Children Together

Published on: April 10, 2012 | On behalf of Arnold & Smith, PLLC

A recent article in the Washington Times discussed the not uncommon occurrence following divorce is one parent moving out of the city or even state. New job opportunities, family times or new relationships can cause one parent to need to relocate. When kids are involved this can cause problems and much stress for parents and children as they worry about a strained relationship developing as a result of distance.

According to a report for the National Center for State Courts, an estimated 18 million children have separated or divorced parents, and an additional 17 million more children have parents who have never been married. One out of four of these children have a parent living in a different city. Within four years after separation or divorce, 75% of mothers will relocate at least once, and of that number over half will do so a second time. As a result, close to 10 million children do not have regular face-to-face interaction with one of their parents.

Technology has now provided an option that did not exist before. Parents can now stay in touch with their children and avoid losing that close relationship thanks to email, texting, Facebook and video conferencing systems such as Skype. This new trend of “virtual visitation” can make long-distance parenting much easier for both parent and child.

The term “virtual visitation” has a very specific meaning under the law and refers to the rights of a non-custodial parent to have electronic communication with their children. Since the early 1990s when the first cases arose concerning the issue many states have enacted provisions concerning the subject. Utah enacted the first electronic visitation law; Illinois was the most recent state where virtual visitation became law in 2010. So far six states have laws on the books covering “virtual” or “electronic” visitation rights including North Carolina: Florida, Texas and Wisconsin are the other three. Twenty-two other states have their own efforts underway to add similar laws to their books.

Family Court Awards Wife Custody of Frozen Embryos

Published on: April 3, 2012 | On behalf of Arnold & Smith, PLLC

According to a recent story on Philly.com, one Pennsylvania woman was recently made happy by winning custody over the frozen, fertilized eggs her ex-husband wanted to ensure were destroyed.

The recent decision by a Pennsylvania appeals court upheld a lower court ruling in a Chester County divorce case. In the case a three-judge Superior Court panel said the dispute could have been avoided if the couple had simply signed an agreement discussing what to do with the pre-embryos in the event of death or divorce. The panel went on to say that the General Assembly in the state has never addressed the issue so turning to statutes was not going to help.
According to court documents, the couple, Lynn Reiss and Bret Howard Reber, began preparing for IVF after Lynn was diagnosed with breast cancer in 2003. The result of their preparation was the creation of 13 pre-embryos using Bret’s sperm and Lynn’s eggs.

Bret eventually filed for divorce in 2006 and went on to have a child with another woman. Lynn was convinced that because of her medical treatments and her age she would be unable to have children so she sought out the pre-embryos that remained frozen. She did so as part of a push for her half of the marital property. The lower court in Chester County last year awarded the pre-embryos to Lynn.

“Because Wife cannot achieve genetic parenthood otherwise, we conclude that Wife’s interest in biological procreation through the use of these pre-embryos outweighs Husband’s professed interest against procreation,” the court said the decision affirmed by the appeals court.

The Superior Court noted that Lynn had promised never to seek child support in the event that she does give birth to a child. However, the court ominously warned that it could not legally prevent Lynn from filing for child support and that this case could yet again wind up back in court.

Same-Sex Couples and Child Custody Disputes

Published on: March 8, 2012 | On behalf of Arnold & Smith, PLLC

According to a recent article on Yahoo.com, a brewing battle between a Florida lesbian couple could spark an important debate over the definition of motherhood.

The women are both in their 30s and both members of law enforcement. One of the women donated an egg that was fertilized and implanted in the other. That partner eventually gave birth in 2004.

In 2006 the couple split up and the birth mother left the state with the child without informing her former partner. The egg-donating woman eventually tracked them down in Australia and began a battle to get the child back in Florida. The fight has now made its way to the Florida Supreme Court which has not yet decided whether it will hear the case. A trial judge ruled in favor of the birth mother saying the biological mother had no parental rights under Florida law. The lower court judge was quick to point out that he hoped to be overruled, but until then had to follow existing law.

The 5th District Court of Appeal did as requested and sided with the biological mother, holding that both women had parental rights to the child. The case combines several controversial issues, including a 1993 state law regulating sperm and donation and a larger question of the constitutional right of homosexuals to raise children and be entitled to equal protection under the law.

The biological mother is not attempting to blaze any trails. According to her lawyer she simply wants to see her daughter again, “She hasn’t seen her daughter in years, and it’s been terribly, terribly difficult for her.”

The Florida duo isn’t the only lesbian couple embroiled in such a dispute. One Virginia woman who renounced her homosexuality has been in hiding with her daughter since a 2009 court decision requiring that her former partner be given custody.

Closer to home, former North Carolina state Sen. Julia Boseman, the first openly gay member of the state’s Legislature, is suing for joint custody of a 2-year-old son born to a woman Boseman referred to as her spouse.

In the Florida case, the Court of Appeal decided that the women’s decision to separate did not dissolve the parental rights of either woman. This despite the argument by the birth mother citing the state’s law on sperm and egg donation, which says that donors “relinquish all maternal or paternal rights,” to argue that the biological mother wasn’t the child’s parent.

The appellate court reversed the lower court judge in a 2-1 decisions finding that the biological mother wasn’t merely a “donor” under the law because she and her former partner intended to parent the child together. The Court ultimately found that they could not find any valid legal reason to deprive either woman of parental rights. The majority further ruled that the donor law was unconstitutional as applied to this case.