Child Custody

Florida Judge Signs Off On Birth Certificate Listing Three Parents :: Child Custody Lawyers and Attorneys in Charlotte Mecklenburg County, NC

Published on: January 22, 2013 | On behalf of Arnold & Smith, PLLC

One girl in Florida will be able to count herself among the very few who can say that they legally have three parents. A judge in Miami-Dade County recently signed off on the unique agreement which gave a lesbian couple and a gay man parental rights to the child.

The situation came about after a hairstylist in Miami Beach, Massimilano Gerina, met a lesbian couple and became fast friends with them. The couple had an interest in conceiving a child and approached Gerina several times with the idea.

After more than a year of discussion, the trio entered into a verbal agreement saying that Gerina would be the father of the baby and be permitted to see her whenever he wanted. Though the agreement existed in their minds, nothing was ever written down, assuming it would easily be put in place later. The insemination process took place in a private medical setting and happened much more quickly than anyone expected, not allowing for time to flesh the agreement out more fully.

The lesbian couple, apparently after having a change of heart, drew up a new agreement and asked Gerina to sign, one that said he would only be seen as a sperm donor and would have no parental rights to the child. Gerina was shocked and sued the couple for paternal rights once the girl was born.

Child Custody Lawyers in Charlotte, NC :: NASCAR CEO Fails to Keep Divorce Records Sealed

Published on: December 18, 2012 | On behalf of Arnold & Smith, PLLC

According to a report by the Charlotte Observer, the North Carolina Court of Appeals decided to uphold a lower judge’s decision to unseal the divorce records from the Chairman and CEO of NASCAR. The case was an especially interesting one and the details have now begun to emerge.

Lawyers for the NASCAR CEO Brian France spent years arguing that the documents should be kept confidential. The papers concern the 2008 divorce between Brian and his then wife, Megan France. The two have a colorful history given that they have been married and divorced twice now.

The Court ruled last year that the public’s right to view public court proceedings outweighed France’s interest in keeping the records private. Then Mecklenburg County District Court Judge Jena Culler reversed an earlier decision by another judge, deciding to unseal the records. Brian France appealed yet again, which meant the decision would be stayed until the Court of Appeals had an opportunity to hear the case again.

France’s attorneys argued before the Court of Appeals that allowing Judge Culler to overturn the order of another judge with an equal rank would result in “judicial anarchy.” The panel with the Court of Appeals was unmoved. Instead, they held that Judge Culler’s decision to unseal the divorce was valid. Given that the three-judge panel was unanimous there is no automatic right to appeal to the North Carolina Supreme Court.

Though records have not yet been released, statements made in court by attorneys on both sides reveal that there are plenty of juicy details in the paperwork. The two are involved in a dispute over whether Megan violated a confidentiality agreement signed during their most recent divorce.

Child Custody Lawyers and Attorneys in Charlotte, NC :: How to Handle Christmas During a Divorce

Published on: December 13, 2012 | On behalf of Arnold & Smith, PLLC

Everyone knows how special Christmas is and all the memories and family and tradition associated with the holiday are exactly what make it so hard for those going through a divorce. Though it may seem difficult to believe, Christmas as a divorced parent can be just as special as it was before, assuming you follow some good advice as discussed on About.com.

Though most parents will find the season very emotional, especially early on, it’s important to remember that your children come first and you should try to not let your own feelings impact how your children experience the holidays. For instance, though missing out on spending time with your children over the holidays may be hard, it’s important that the kids not feel guilty for spending time with their other parent. While you can understandably be upset, keep the feelings to yourself.

It is also important after a divorce to begin new traditions. While some things can stay the same, others simply cannot. Rather than worry about all the things that will be different, embrace the changes that divorce has brought and take the opportunity to start doing something new and fun. Any past seasonal behaviors that were once wonderful but now dredge up negative emotions can be done away with and replaced by new and exciting activities.

It’s also critical to reach out to friends and family for support during the Christmas season. It’s true what they say, the more the merrier. The more people around to lighten your mood the better off you’ll be. Other people can be a great distraction and help keep you out of a bad emotional place.

Another good idea to take your mind off your own problems is to do something nice for others. Go volunteer at a soup kitchen or deliver meals to senior citizens. Do something for someone else less fortunate and it will help remind you of all the good things you still having going for you. It also can help teach your children a valuable lesson about giving back to others, which is what the season is really about.

Child Custody Lawyers in Charlotte, Mecklenburg County, NC :: North Carolina Court of Appeals Wrestles With Common-Law Marriage

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

A North Carolina Appeals Court says that couples that want to be treated as spouses in a North Carolina divorce proceeding must establish their common-law marriages in other states first before moving to North Carolina.

Though marriage is a wonderful spiritual union between two people, the reality is under North Carolina law it’s a legal contract. When a valid marriage takes place, spouses automatically assume certain legal rights, such as the right to the other’s estate. Though these rights apply automatically to married couples, dealings with other couples aren’t so simple.

The North Carolina Court of Appeals ruled early last week that couples must establish common-law marriages in other states before they can be considered as spouses in divorce proceedings. Common-law marriages are not recognized in North Carolina. However, the appeals court said that the state’s courts “will recognize as valid a common-law marriage ‘if the acts alleged to have created it took place in a state where such a marriage is valid.'”
The case in question concerns a woman, Hulya Garrett, who is seeking alimony, division of property and a divorce from her boyfriend of many years, Charles Burris. The two lived together in Texas for eight years, a state that does permit common-law marriage. To qualify as a common-law marriage in Texas, a couple must prove three things: 1) that they agree to be married; 2) that they live together as husband and wife; and 3) that they represent themselves to others as spouses.

Child Custody Attorneys and Lawyers in Charlotte, NC :: Disability and Its Impact on Child Custody Hearings

Published on: November 29, 2012 | On behalf of Arnold & Smith, PLLC

For many parents in North Carolina, obtaining child custody can feel like an uphill battle. One good example is men who feel like they have to fight harder to get equal time with their former wives. As much as we all would like to believe that discrimination does not exist in family law, anecdotal evidence suggests that it is sadly alive and well.

One group that appears to suffer from widespread discrimination in child custody cases is disabled parents. Although the Americans with Disabilities Act of 1990 helped eliminate most legal discrimination against the disabled, a new report by the National Council on Disability says that the struggles that disabled parents have been dealing with continues to this day. The report claims that disabled parents routinely suffer bias in the U.S. legal system through denial of child custody, many times against the best interests of their children. The bias extends even further than divorcing couples and can result in children being removed from households where both parents are disabled to instead live in foster care.

Some experts believe that while it may be sad, it can be in the best interest of the children to remove them from the care of their disabled parents. They claim children need stability that disabled parents cannot provide. However, stripping such parents of their rights runs in direct violation of the Americans with Disabilities Act.

According to the report, more than 6 million children in the U.S. have disabled parents, and the rate at which these children are removed from the home has reached as high as 80%. Rather than sending children to live with strangers in foster homes, the report says that there should be more backup support for parents to avoid possible problems that arise from their disabilities.

Child Custody Lawyers Monroe; Union County; North Carolina :: What Does a Guardian Ad Litem Do in a North Carolina Divorce?

Published on: November 22, 2012 | On behalf of Arnold & Smith, PLLC

Guardians ad litem are people that have been appointed by the court to represent “the best interests of the child” in court proceedings. In family court, guardians are appointed in contested custody and visitation cases, and cases where abuse or neglect has been alleged. Though guardians can be directly appointed by judges, in many contested custody and visitation cases the guardian is selected by the parties’ attorneys.

In these contentious custody cases the guardian is paid for by the parties. Though the guardian ad litem is typically an attorney, this is not always the case as anyone who meets the requirements can be a guardian in such cases.

The guardian’s role is a bit of a mixture of investigator and advocate. Some guardians will tend towards one side and not the other; it depends on the circumstances of the case and the temperament of the individual guardian. Some are zealous advocates for the children while others act as reporters, documenting behavior and recording interactions between parents and child.

The guardian who acts as an investigator will try to develop a strong factual understanding of the life of the parents and child. Guardians are empowered to interview the parents and the children, observing them on multiple occasions and even conducting surprise home visits. The guardian can then present the court with information that a judge would want to know when making a decision concerning custody and visitation. The guardian who behaves more like an advocate can have more of a viewpoint, deciding which situation is a better fit for the child and attempting to influence the court to support this view.

Even the most balanced guardians can invariably influence judges in their final reports. A guardian whose final report that says the children are doing fabulously well with the mother or that the father is an alcoholic carries a lot of weight with judges and can ultimately be determinative. Such reports let the court know what’s going on so that they can make a recommendation as to custody.

Child Custody Lawyers in Charlotte, Mecklenburg County, North Carolina :: Custody Fight Revolves Around Whether Woman is Mom or Merely Surrogate

Published on: October 30, 2012 | On behalf of Arnold & Smith, PLLC

As many people realize, whether you’re part of a traditional marriage, in a same-sex relationship or a single person who has always wanted a kid, there are now many more options than there used to be for raising children. One option that has been utilized by those who have had trouble conceiving is in vitro fertilization. However, a recent child custody and surrogacy case that’s grabbed national headlines might have some couples questioning the process and raise concerns for those that have used it in the past.

The case involves a 48-year-old single woman who wanted a child. She found a male friend who was also interested in having a kid and they concocted a plan that would allow them to have a child together, platonically. The male friend agreed to pay for in vitro using his sperm and a donor egg that the woman would then carry to term. Everything went smoothly and the woman gave birth to healthy twins over the summer. Almost the moment after she had given birth the problems started. Apparently the man had different intentions than those discussed with his friend. A social worker appeared in the hospital room to discuss the “surrogacy situation,” a phrase that shocked the woman who believed she was the children’s mother.

The woman says that her friend, whom she only then realized was gay, had evidently been planning to raise the children with his male partner, not the woman who had carried them. While the woman was still hospitalized recovering from the birth, her friend had filed a lawsuit claiming that because the woman had no genetic ties to the children she should be stripped of any custody or visitation rights.

Right now the woman is allowed to see her children only two hours a day, six days a week. However, the battle is not over. The woman feels like her children that she worked so hard to have were stolen from her and her custody fight continues.

Child Custody Lawyers in Charlotte, North Carolina :: New HBO Documentary Allows Kids to Give Advice About Divorce

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

It’s pretty easy for one adult to share advice with another on how to handle your divorce. But for many parents, the divorce process is so full of concerns unique to their family that tips from well-meaning friends, family members and colleagues can easily go in one ear and out the other. A new documentary film aims to grab the attention of these parents by reminding them that kids have some good ideas, too.

One of the most stressful aspects of divorce is child custody. Deciding where your kids will live and when they’ll see their other parent greatly impacts them, but they are often not consulted in any of the decision-making. Parents can inadvertently make the divorce even more overwhelming by throwing a lot of changes their child’s way and expecting them to simply go along with everything, new living arrangements, rules, routines and all, without giving them any input in their future. According to the kids in the new documentary, that’s not fair. The HBO movie, “Don’t Divorce Me! Kids’ Rules for Parents on Divorce,” debuted last month and will be repeated several more times.

One girl in the movie says that parents should instead give their kids some time to process changes and then listen to what they say in response, no matter if those opinions conflict with your own plans. By working together you may be able to develop some new routines that work for everyone. One of the film’s participants described a system for making sure she has everything she needs for stays at her dad’s house.

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.