Visitation

Benefits of Pre-Nupts in North Carolina

Published on: February 16, 2012 | On behalf of Arnold & Smith, PLLC

Asking for a prenuptial agreement may not be the most romantic thing, especially with Valentine’s Day just behind us. That might not be true according to some experts who suggest that sitting down with a soon-to-be spouse and making arrangements for the worst might do a lot to alleviate worries going into marriage.

According to a recent article on Yahoo.com, everyone could benefit from a prenupt, even if you’re not going into marriage wealthy. One divorce attorney pointed out that “You might accumulate assets during the marriage, and even a young couple embarking on their own careers wants to make sure that what they acquire during marriage isn’t just left up to a judge to divide.”

Trying to predict how a court will divide assets is all but impossible and the certainty that a prenup offers is one of its best features. No two divorces are alike and judges might make choices with your assets that you weren’t prepared for. Student loan debts, often viewed as personal might actually be made marital burdens and split between the parties under certain circumstances. By drafting a clear plan outlining how your debts and assets will be divided in the event of divorce couples can shield themselves from some of the uncertainty of a litigious divorce.

The following are a list of four reasons you should consider creating a prenup:

1. Talking about potential problems can shed light on the status of your relationship today.

Many couples today enter marriages on an equal footing. Life and families can change the financial picture with one person staying at home and another continuing in their career. When you ask about the possibility of alimony in the event of divorce many couples are surprised to hear the response of their significant other and shocked that it might not be what they thought. If your husband balks at the idea of paying support then that can play a role in deciding whether or not you’ll continue to work.

2. You can create a post-nup.

While post-nuptial agreements are tricky and can be more difficult to enforce, they can be created if each party brings something to the table. A post-nupt might make sense for instance if one spouse decides to stay home and wants to protect themselves financially.

3. Prenupts cost half as much as the average engagement ring.

A typical prenupt costs around $2,500, close to what it costs to have a lawyer create an estate plan. Do-it-yourself forms from websites (LegalZoom.com) can sometimes be tossed out of due to legal requirements not being met and are not a viable alternative. The average engagement ring costs about $5,200 according to The Knot, putting the cost of a prenup into perspective.

Unhappy Groom Demands New Wedding

Published on: January 19, 2012 | On behalf of Arnold & Smith, PLLC

In an rare case of a “Groomzilla”, the Associated Press reports that a recently divorced man is now demanding that a photography studio pay to recreate his wedding to make up for what he has decided are flawed pictures and videos of what was supposed to be his happiest day. Though many in the press have dubbed Todd Remis a “groomzilla,” he recently spoke out saying that his lawsuit is actually about holding a business to their promise, not clinging to a broken marriage.

While suits over wedding photographs are common occurrences, Remis’ case contained an unusual spin: a demand that the company recreate the ceremony of his now failed marriage. Remis began divorce proceedings in 2008 and the couple officially split in 2010.

Despite the marriage no longer existing, Remis says that he needs the “wedding recreated exactly as it was so that the remaining 15 percent of the wedding that was not shot can be shot” and the album and video completed “so we have memories of the wedding.” In order to capture this missing footage Remis acknowledges that “we would need to recreate everything.”

Remis began his lawsuit against H&H Photographers in 2009, saying the well-respected New York City-area studio had done a terrible job of shooting his and Milena Grzibovska’s December 2003 wedding. Remis claimed that the chosen photographer ignored the couple’s request not to shoot in front of a mirror that ended up reflecting photographers’ lights. Moreover, the photographer and videographer left 45 minutes before the end of the reception, missing the last dance and the bouquet toss, evidently crucial events in Remis’ mind.

The couple paid a $3,500 advance toward a $4,100 total price for the photos and videos, part of a wedding Remis has said cost more than $48,000. For their part, H&H co-owner Daniel Fried says he stands by the photographs and videos. “I think the photography is lovely,”

Grandparent Visitation/Custody Case Reviewed by North Carolina Court of Appeals

Published on: November 15, 2011 | On behalf of Arnold & Smith, PLLC

In the case of Powers v. Wagner, the North Carolina Court of Appeals considered a case where the trial court awarded primary custody of a minor child to the child’s grandparents. As with any grandparent visitation or grandparent custody case, the analysis is very fact specific and it is important to consider all of the relevant facts when considering such a case. Here, the mother and father had a child out of wedlock while they both lived in Florida. Mother and father did not marry. Mother eventually filed an action against father in Florida for paternity and child support. The paternity action determined that father was the biological father of the minor child. Mother also received an order for child support against Father. Importantly, no child custody determination was made in Florida.

Father took the minor child to North Carolina and the minor child lived with the paternal grandparents in North Carolina for an extended period of time. The paternal grandparents were granted temporary child custody of the minor child in September 2009. The paternal grandparents were granted permanent legal and physical custody of the minor child, with a structured visitation schedule for mother, in November 2009. Mother appealed and challenged two issues with respect to this family court opinion. First, mother contended that the trial court erred in finding that it had subject matter jurisdiction. Second, mother contended that the trial court failed to make adequate findings of fact supporting its conclusion that mother had acted contrary to her constitutionally protected parental rights.

While the trial court’s order did not explicitly track the language of North Carolina General Statute § 50A-102(7), the North Carolina Court of Appeals found that the trial court did make adequate findings of fact to support its conclusion that North Carolina had subject matter jurisdiction over this grandparent custody case. The North Carolina Court of Appeals noted that it is a better practice to for the family trial court to specifically outline its findings of fact pertaining to the “home state” of the minor child, it is not necessary.

The North Carolina Court of Appeals agreed with mother that the trial court did not make adequate findings of fact to support its conclusion that mother had acted contrary to her constitutionally protected parental rights. The North Carolina Court of Appeals considered the recent decisions in Bozeman (discussed herein at North Carolina Supreme Court Considering Same-Sex Adoption, Same Sex Adoption without Same Sex Marriage? and Same Sex – Second Parent Adoption Case Decided by North Carolina Supreme Court) and Price to illustrate the importance of the trial court analyzing the intent of the parent who is alleged to have acted inconsistently with their constitutionally protected parental rights. Specifically, the trial court is required to consider the parent’s intention with respect to the relationship between the minor child and the third-party (in this case the paternal grandparents) when the relationship begins and as it develops.

Mecklenburg County Child Custody Case Remanded on Suspension of Visitation Issue

Published on: November 10, 2011 | On behalf of Arnold & Smith, PLLC

A case out of the Mecklenburg County Family Court (Charlotte, North Carolina) denominated Maxwell v. Maxwell was recently considered by the North Carolina Court of Appeals. After being held in contempt, ordered to undergo a psychiatric evaluation and having his visitation suspended, Father entered notice of appeal. He appealed the Mecklenburg County Family Court’s order on three grounds: First, he contended that the court erred in holding him in civil contempt of court for failing to pay child support. Second, he contended that the Court erred in ordering him to undergo a psychiatric evaluation. Finally, he contended the court erred in suspending his visitation. At issue in this case was whether the Mecklenburg County Family Court’s order amounted to a temporary order on child custody or whether it was a permanent order on child custody. We will only consider the second two issues in this post.

After taking evidence, which included evidence of physical and verbal abuse by the Father, the Charlotte family court judge ordered, ex mero moto (on its own motion), that the Father must go through a psychiatric evaluation before he may have visitation with the minor children (who happen to be quadruplets). In essence, the father contended that the Court erred in requiring him to undergo a psychiatric evaluation without proper notice of the hearing and an opportunity to be heard. The North Carolina Court of Appeals disagreed noting that the Court has broad discretion in the determination of the best interests of minor children. Consistent with this broad discretion, the trial Court has the authority to order, on its own motion, that a party undergo a psychiatric evaluation.

The last issue raised by appellant was whether the Court made adequate findings of fact to support its suspension of father’s visitation with the minor children. Interestingly, there was some issue here with respect to whether the Mecklenburg County Family Court Judge intended to enter a temporary child custody order or whether it intended to enter a permanent child custody order. The issue raised by Father was that the Court did not find that either (1) the Father was unfit to have visitation with the minor children; or (2) that it was in the minor children’s best interest that Father not have visitation with them. Indeed, these are the requirements set forth in North Carolina Gen. Stat. § 50-13.5(i).

As mentioned previously, at issue is whether this was a temporary child custody order or a permanent child custody order. The reason being that a temporary order would ordinarily not be immediately appealable whereas a permanent order would be immediately appealable. The North Carolina Court of Appeals treated the order at issue as permanent, and therefore immediately appealable, despite the fact that it was silent with respect to whether it was a temporary child custody order or a permanent child custody order. Importantly, the North Carolina Court of Appeals noted that the order at issue in the case at bar was silent with respect to a review date.

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

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

In the case of Hibshman v. Hibshman the North Carolina Court of Appeals entered a ruling relating to a modification of child custody case. In this case, the parties had a prior child custody order (by consent) which awarded primary child custody to mother. Said consent order on child custody provided that said award of primary child custody was contingent upon Mother remaining with the minor children in a particular school district. The consent order on child custody provided that if motion moved away from the particular school district then the Court would receive additional evidence and would be free to modify the prior child custody decree without making a finding of a substantial change in circumstances affecting the welfare of the minor children. Interestingly, not only did the prior consent order on child custody provide for this stipulation, but the parties and child custody lawyers reconfirmed this stipulation at trial.

Ultimately, the mother moved and the Court held an evidentiary hearing in order to determine what would be in the best interests of the minor children. Again, the parties reconfirmed their stipulation that the Court did not need to take evidence on, or find facts supporting, a substantial change in circumstances to support any modification of child custody. The Court took the evidence and changed primary custody from mother to father. Not surprisingly, mother appealed and, among other things, argued that the parties could not waive the necessity of the Court finding that there had been a substantial change in circumstances affecting the welfare of the minor children.

The Court held that there is no provision in North Carolina child custody law which would permit the parties to waive the necessity of the Court finding that there had been a substantial change in circumstances affecting the welfare of the minor children. The Court noted that North Carolina General Statutes § 50-13.7 (Modification of order for child support or custody) governs modification of child custody and explicitly requires the finding of a change of circumstances before child custody may be changed. The Court noted that this requirement of a substantial change in circumstances affecting the welfare of the minor children is intended to bring about a level of stability in child custody litigation cases.

The Court considered father’s contention that mother had waived her right to object on these grounds and should be equitably estopped from being able to appeal on this issue. The Court noted that the requirement of a showing of a substantial change in circumstances affecting the welfare of the minor children is a statutorily mandated limit on the Court’s authority to modify child custody. According to the North Carolina Court of Appeals, it is not a personal right which may be waived by either of the parties. The Court also noted that the requirement of a showing and a finding of a substantial change in circumstances affecting the welfare of the minor children is a requirement which is intended to protect the minor children. It is not a requirement which is intended to protect either of the parents.

Virtual Visitation in Family Law

Published on: December 3, 2010 | On behalf of Arnold & Smith, PLLC

Courts are beginning to utilize new technology to experiment with the implementation of “virtual visitation” on divorced parents who do not live in the same state. A New York judge recently ruled that a mother who was moving out of state to Florida must make her two children available to talk to their father via Skype, an online video chatting service. Many other states have also begun to experiment with virtual visitation laws, with judges ordering non-custodial parents to keep in contact with their children through email, instant messaging, and web cameras.

Grandparent Visitation and Custody in Charlotte, North Carolina

Published on: September 28, 2010 | On behalf of Arnold & Smith, PLLC

According to a Pew Research Center analysis of the most recent Census Bureau data, the number of children in the United States being raised by their grandparents rose sharply as the recession began. In all, approximately 7 million children live in households that include at least one grandparent. Of that number, 2.9 million are being raised primarily by their grandparents, a number up 16 percent from 2000, with a 6 percent surge from 2007 to 2008.

There are many reasons why grandparents are taking over child raising duties. Grandparents frequently report taking over when a single parent becomes overwhelmed with financial problems, is incarcerated, becomes ill, succumbs to substance abuse, or dies. High rates of divorce and teenage pregnancy as well as long overseas military deployments also factor into the increased dependence on grandparents.

According to the Pew Center, 34 percent of grandparent caregivers are unmarried, and 62 percent are women. Child-rearing by grandparents also varies by race, but the sharp rise in grandparent caregiving from 2007 to 2008 was among whites. However, overall, 53 percent of grandparent caregivers are white, 24 percent are black, and 18 percent are Hispanic.