Child Custody

Registration and Modification of Foreign Child Custody and Child Support Order in Mecklenburg County Case

Published on: October 25, 2011 | On behalf of Arnold & Smith, PLLC

The North Carolina Court of Appeals entered a ruling in the case of Crenshaw vs. Williams which came out of Mecklenburg County Family Court. This case involved a motion to modify child custody and a motion to modify child support. This case involved the registration of a foreign child custody and child support order in North Carolina for modification. This case illustrates important differences between North Carolina’s jurisdiction to register and modify a child custody decree and jurisdiction to register and modify a child support decree.

In this case, the parties had a prior Order from Michigan which addressed child custody and child support of the parties’ minor children. Ultimately, Father and the minor children lived in North Carolina with Father’s new wife while Mother lived in Georgia. Father registered the Michigan child custody and child support order in North Carolina and made a motion to modify child custody and a motion to modify child support. The trial court entered an order modifying child custody and modifying child support. Mother appealed to the North Carolina Court of Appeals.

With respect to the modification of child support, the North Carolina Court of Appeals ruled that the Uniform Interstate Family Support Act (UIFSA) required that Father register the Michigan Order in Georgia to seek a modification. Since Mother was the obligor (the party who had to pay child support under the Michigan Order), UIFSA required that the Michigan Order be registered in Georgia. Georgia would then have the authority to modify the child support obligation, if it was appropriate.

With respect to the modification of child custody, the North Carolina Court of Appeals ruled that the registration was appropriate under North Carolina General Statutes Section 50A-203(2) and that the North Carolina trial court, therefore, had subject matter jurisdiction to modify the foreign child custody Order from Michigan. Since North Carolina was the “home state” of the minor children, it was appropriate to register and modify that child support order in North Carolina. North Carolina law dictates that the “home state” of a minor child is the state in which the children have resided for the six months immediately prior to the filing of the action.

Mother attempted to argue that the child custody and child support determinations were too closely intertwined to be determined separately and, therefore, the trial court should not have determined the modification of child custody issue since it did not have jurisdiction to determine child support. The North Carolina Court of Appeals considered this argument and rejected it because there was ample evidence that the trial court considered beyond the respective financial positions of the parties which related to the best interests of the minor children.

The North Carolina trial court awarded the Father primary custody of the parties’ minor children. There were numerous findings of fact which demonstrated a substantial change in circumstances affecting the wellbeing of the minor children since the prior child custody order was entered in Michigan. The trial court also found numerous facts which supported its finding that awarding primary custody of the minor children to Father was in the best interests of the minor children.

Divorce No More?

Published on: September 29, 2011 | On behalf of Arnold & Smith, PLLC

According to a report by Reuters (‘Til 2013 do us part? Mexico mulls 2-year marriage), legislators in Mexico City are considering the concept of temporary marriage licenses. The new law would allow the couple to, on the front end, decide on how long their marriage would be. The minimum duration of of a marriage contract would be for two years – renewable upon the election of the couple. The couple would also decide, on the front end, how children and property would be handled if the contract is not renewed.

Divorce rates in Mexico City are much higher than in other parts of the country. In Mexico City, approximately half of the marriages end in divorce – often within the first two years.

Modification of Child Custody Decision Rendered by North Carolina Court of Appeals

Published on: September 13, 2011 | On behalf of Arnold & Smith, PLLC

The North Carolina Court of Appeals rendered an opinion in a North Carolina child custody case. In this case, Mother and Father were parties to a separation agreement. This separation agreement was incorporated into the Court’s Decree of Absolute Divorce which terminated the parties’ marriage and turned the child custody terms of the separation agreement into an order of the Court.

Only a month after the entry of the Decree of Absolute Divorce, Mother filed a motion to modify child custody. Mother asked that Father have no visitation. At the hearing on Mother’s motion to modify child custody, Mother alleged that Father had physically and sexually abused the minor child.

The trial Court found that neither Father nor Mother had proved that there had been a substantial change in circumstances which would support a modification of child custody and dismissed both motions to modify child custody. Mother appealed and took the position that some of the trial Court’s findings of fact were not supported by competent evidence.

Child Custody and Child Support Appeal Denied

Published on: August 25, 2011 | On behalf of Arnold & Smith, PLLC

In the case of Moore v. Onafowora, the trial Court granted Mother sole child custody and determined an appropriate amount of child support to be paid to Mother by Father. Father appealed the child support award and the sole child custody determination. With respect to child support, Father contended that the Court erred by imputing income to him for prospective child support based on past years bank account statements. The North Carolina Court of Appeals determined that the trial Court did not actually imput income to Father. Rather, the North Carolina Court of Appeals determined that the trial Court determined Father’s income from all available sources. So, that part of the appeal was denied.

Attorney Fee Issue Addressed by NC Court of Appeals

Published on: August 11, 2011 | On behalf of Arnold & Smith, PLLC

In the North Carolina case of Simpson vs. Simpson, the Court of Appeals evaluated a dispute over the award of attorney fees. The dispute over attorney fees arose because Father filed a motion to modify child custody. Motion moved to dismiss the motion to modify child custody on the grounds that Father failed to allege a substantial change in circumstances affecting the welfare of the children. Mother’s motion to dismiss was granted and she subsequently sought reimbursement of her attorney fees. In support of her motion for attorney fees, Mother submitted a verified “Motion to Tax Costs,” a “History Bill,” and an affidavit of financial status. The trial Court heard Mother’s Motion to Tax Costs and allowed the parties to submit additional authority after the hearing but refused to allow the parties to submit any further evidence.

Termination of Parental Rights and Guardianship Goes to NC Court of Appeals

Published on: August 8, 2011 | On behalf of Arnold & Smith, PLLC

In the matter of A.S.Y, the North Carolina Court of Appeals evaluated whether a Guardian ad Litem for Mother should have been allowed to withdraw immediately prior to the hearing on whether to terminate Mother’s parental rights. The procedural history of this case is such that Mother requested assistance for herself and her daughter from Orange County Department of Social Services. That day, Orange County DSS assumed custody of the child and placed her in foster care. A Guardian ad Litem was appointed for Mother for the neglect and dependency proceedings.

Father Appeals the Termination of His Parental Rights

Published on: August 4, 2011 | On behalf of Arnold & Smith, PLLC

In the matter of D.H.H., the Father of D.H.H. had his parental rights terminated by the trial Court. The trial Court found three grounds on which it based its termination of Father’s parental rights. Father appealed and challenged only the first and second grounds on which his parental rights were terminated. Father did not challenge the third ground on which his parental rights were terminated.

Interstate Child Custody Case Reviewed by North Carolina Court of Appeals

Published on: June 30, 2011 | On behalf of Arnold & Smith, PLLC

The North Carolina Court of Appeals reviewed an interstate child custody case in Bohannan vs. McManaway. This case is noted by the North Carolina Court of Appeals to be a “procedural quagmire” and this review will not recount all of the procedural history. Ultimately, the North Carolina Court of Appeals ruled that the trial court abused its discretion by denying Mother’s Rule 60 motion to set aside the 2007 Order. The North Carolina Court of Appeals ultimately vacated said Order, largely, because the evidence was undisputed that hte Order was entered without hearing any evidence. Further, there was a “patently false” finding of fact that Mother had not filed an answer in the case.

Child Custody Decision by North Carolina Court of Appeals

Published on: June 28, 2011 | On behalf of Arnold & Smith, PLLC

The North Carolina Court of Appeals issued a ruling in a child custody matter relating to a jurisdictional issue in Sherrick vs. Sherrick. In this case, the North Carolina Department of Social Services initiated an action alleging that the minor child was a neglected juvenile. Eventually, the custody of the minor child was granted to the child’s parents and the paternal grandparents via a Consent Order. This Consent Order also included a provision directing the Clerk of Superior Court to “treat this Consent Order as the initiation of a civil action for custody of the juvenile.” There was a subsequent hearing under a new file number at which custody was granted to the parents, the paternal Grandparents appealed.

Same Sex – Second Parent Adoption Case Decided by North Carolina Supreme Court

Published on: June 24, 2011 | On behalf of Arnold & Smith, PLLC

The North Carolina Supreme Court ruled on the issue of same sex adoptions, or second parent adoptions, in the case of Boseman vs. Jarrell. This case involved a same sex couple who conceived a child together. After the child was born, the second parent adopted the child. The North Carolina Supreme Court ruled that the adoption decree was void ab initio because “the General Assembly did not vest our courts with subject matter jurisdiction to create the type of adoption attempted here.”