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Articles Posted in Visitation

children 3.jpgIn 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.

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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.

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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.

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