Child Custody

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.

Charlotte, North Carolina Divorcing Couples Should Beware of Snooping Spouses

Published on: February 23, 2012 | On behalf of Arnold & Smith, PLLC

As a recent article on USAToday.com points out, more and more divorces in the modern age involve electronic bad acts. As couples store and transmit increasing amounts of information electronically, through email, social media and text messaging, spouses are increasingly spying on each other’s communications, sometimes even illegally. Because of the speed with which this happened the law has found itself unable to keep up which has left many unanswered questions about what kind of behavior is acceptable.

A judge in Nashville, Tennessee notes that technology has “has resulted in a lot of evidence, not only of romantic involvement of one spouse with someone else, but it can also result in proof of undisclosed assets or responsibilities, financial misconduct.”

As this new type of information proliferates judges find themselves having to sort out subtle nuances. For example, how much of a shared computer is one spouse permitted to access? What if one party knew another’s e-mail password before divorce proceedings began? And what are the repercussions for breaking those rules?

The thorniest issues by far involve email and social media communications. Attorneys have had to adapt to the issues too and an experienced Charlotte divorce attorney would recommend that you chance your passwords when you begin divorce proceedings. One Nashville attorney is quoted as saying that “If you don’t change your passwords, you left them the key to the house.”

If one party knows another party’s password before the divorce proceedings, it’s possible that he may legally be able to read and save her e-mails during the proceedings. However, more extreme examples of snooping behavior, such as spyware or methods aimed at intercepting emails, are more legally troublesome. By going after all emails it can include confidential communications with attorneys and, as such, can result not only in civil liability, but also a criminal offense.

Even if criminal charges are not filed, the information obtained from snooping software could ultimately prove useless. Attorneys are able to object if certain documents have been obtained illegally and avoid having the evidence entered into the record.

Most attorneys also advise clients to avoid discussion of any sensitive matters that could become relevant in a divorce proceeding while on social media sites. Email communications might be protected due to the expectation of privacy, putting comments online on Facebook is certainly not private and the law would likely recognize no protection for such remarks.

Claiming Dependent Children on Taxes in North Carolina

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

Many people going through a divorce have questions come tax time as the financial changes their family has gone through become clear. When and how a person can claim a child following a divorce can depend on a number of factors. The first step before you claim a child as a dependent is to make sure he or she fulfills certain basic criteria, all of which are set forth in IRS regulations.

First, and most obviously, the child in question must actually be your child or a descendent of your child. This does not mean the child must biologically be yours. It can mean either through birth, adoption or foster parenting. The child in question is also allowed to be a sibling, half-sibling or step-sibling, or a descendant of any of these.

The child being claimed must also be younger than 19, or 24 if he or she is a full-time student, and must also be younger than you (something that shouldn’t be much of a problem). The only caveat to the age requirement is if your child is permanently disabled, in which case you can claim him as a dependent regardless of his age.

Beyond these two fairly simple factors, the IRS also looks to the child’s residency throughout the year. Typically, you are permitted to claim a child as a dependent if he or she resided with you for more than half of the year. Of course, in shared custody situations, this can become tricky. The residency requirement means that parents with primary custody of their child will be the ones that are able to claim the kids as dependents.

There are, however, situations where a non-custodial parent can claim a child as a dependent if several additional factors are met. First, the parents must be legally divorced, separated under a written separation agreement, or living separately for at least the past six months. Second, the child must have received more than half of his financial support over the year from either one or both parents. Third, the child must have been in the custody of one or both of the parents for more than half of the year. Fourth, the custodial parent who would typically be able to claim the child must sign a form declaring that they will not claim that child as a dependent for that year’s taxes. The non-custodial parent must then attach this declaration to her tax return.

Discrimination and North Carolina Child Custody Cases

Published on: February 9, 2012 | On behalf of Arnold & Smith, PLLC

According to one recent article, a new bill before the Utah legislature, HB88, would add a statement to Utah’s divorce statute saying that courts, when making a child custody determination, may not discriminate against a parent based on age, race, color, national origin, religious preference or gender.

The bill’s sponsor, Representative Ryan Wilcox, R-Ogden, said he intends for the bill to ensure that judges consider both parents when deciding issues of custody, giving a complete look to both instead of the antiquated notion that the mother is a better choice in all circumstances.

One family who recently lost a young child after the drug addicted mother who won custody of her failed to prevent her death said that they were told, “unless the mother was in a hospital or a coffin there was nothing they could do.” Dan Deuel, of the American parental Action League, said that “In my mind, no discrimination is a no brainer.”

While the committee unanimously endorsed HB88, some lawmakers expressed their displeasure at having to remind judges to be fair in the first place. Representative Curtis Oda said that, “The court is supposed to be balanced. It seems to be going in the other direction.” Another lawmaker, Representative Jennifer Seelig, said she supported the legislation because it addresses the long-held notion that mothers are better parents than fathers. “I think it has potential not only for changing the system but for changing hearts and minds,” she said.

Paternity and Child Support in North Carolina: The Impact of Senate Bill 203

Published on: January 26, 2012 | On behalf of Arnold & Smith, PLLC

In 2011 the North Carolina General Assembly passed a bill addressing how to go about setting aside an order of paternity and to allow relief from a child support order when the man responsible for payment is not the child’s father. The bill has a potentially important impact on child support cases where paternity is a disputed issue and thus deserves discussion.

Senate Bill 203 was introduced in Raleigh by Don Eastman and Floyd B. McKissick, Jr., and passed the NC General Assembly during the 2011 legislative session. It’ s intent was to modify existing child support laws. Section 1 of the bill states:

Notwithstanding the time limitations of G.S. 1A‑1, Rule 60 of the North Carolina Rules of Civil Procedure, or any other provision of law, an order of paternity may be set aside by a trial court if each of the following applies:

1) The affidavit of parentage was entered as the result of fraud, duress, mutual mistake or excusable neglect.

2) Genetic tests establish the putative father is not the biological father of the child.

The bill was proposed for several reasons, one being to address existing holes in North Carolina’s child support laws, another was to respond to the current economic climate and ensure that fathers are not forced to continue supporting children that they later discover are not biologically theirs.

The bill continues by clarifying that in any motion to set aside paternity it shall be the responsibility of the moving party (the person seeking to set aside the paternity determination) to meet the burden of proof. The legislature said that upon proper motion, courts should order the child’s mother, the child in question and the possible father to submit to genetic paternity testing.

If the court determines, as a result of genetic testing, that the potential father is not the biological father and that the order of paternity was entered as a result of fraud, duress, mutual mistake, or excusable neglect, the court may then set aside the order of paternity. It’s important to note that nothing in the language is meant to alter the current presumption of legitimacy when a child is born to a mother and a father during the course of a marriage.

Custody of Children Taken from Parents who Gave Nazi Names

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

According to a recent report, the parents who gave their three children Nazi monikers have had their children taken away from them by the Department of Youth and Family Services. There appears to be a significant dispute about the basis for having the minor children taken from their parents. These three children each have Nazi style names. In fact, the family gained national attention when they went to the grocery store to get a birthday cake for their son, Adolf Hitler. The clerk at the cake counter apparently would not put the child’s name on the cake and reported the situation to authorities.

The interesting issue here, aside from the unique names of the children, is why were the children taking from their parents in the first place? While most of us would not choose to name our son “Adolf Hilter,” surely, no one wants to live in a society where the government can swoop in and take children away because it does not approve of the names of the children, do they? What if the government were to begin publishing a list of names which are forbidden? Or worse, what if it began publishing a list of acceptable child names?

There appears to be a significant disconnect here with respect to why the children were taken away from their parents. According to one source noted in the article, the children were taken away from their parents because there was evidence of domestic violence in the household. Candidly, this seems rather farfetched to this writer. Even if there were an incident of domestic violence, would that justify the government taking these children away from their parents? Indeed, one might wonder if there are enough foster homes in Mecklenburg County to house all of the children whose parents may have had an incident (isolated or otherwise) of domestic violence. The “domestic violence” angle seems to be a rather weak red herring.

What seems more likely is exactly what the Court of Appeals seems to have found: that there is no legitimate reason why the children were taken away from their parents. Or, more precisely, that the children were taken away from their parents because somebody did not like how these parents chose to name their children. What about these parents’ constitutional right to parent their children? What about these parents’ constitutional right to free speech?

Of course, as we all know, very little is black and white and there probably is no easy answer to this question. As much as it might seem Un-American to take someone’s son away from them for naming him “Adolf Hitler” (how ironic!), there does seem to be a counter argument. Might it be argued by the government that the act of naming a child “Adolf Hitler” is, in and of itself, a form of child abuse? Indeed, one might imagine that this child will suffer years of otherwise unlikely attention and, maybe, ridicule, scorn and taunting. What if little Adolf were to be a big time basketball player? What would the fans chant while he is on the free throw line? We all know how heartless and unthinking children and adolescents can be at times.

While this may be an extreme case, the notion of the government taking children away because they are not given “acceptable” names seems to be a very slippery slope. Who decides if a name is acceptable? By what standards is it determined whether a name is acceptable or not acceptable? Is the government to publish a list of acceptable and unacceptable names? Is a parent to get prior approval before putting a name on the birth certificate?

As a parent, moms and dads have a tremendous amount of responsibility for the wellbeing and development of their child. Decisions which moms and dads make every day have a huge impact on the upbringing and advancement of their children. Such decisions affect whether the child will be a good student, whether they will respect authority and the law, whether they will have a good work ethic. Even decisions as seemingly innocuous as how to have the child’s hair styled or what the child is to eat for dinner are within the parents’ discretion and can have an impact on the child.

Adoption and Child Custody Ruling Issued by North Carolina Court of Appeals

Published on: November 17, 2011 | On behalf of Arnold & Smith, PLLC

In the adoption and child custody case of Best v. Gallup, the North Carolina Court of Appeals examined a case involving both an adoption and nonparent child custody. In the adoption and child custody case at bar, mother and “father” were romantically involved and intended to be married. For approximately six (6) years, mother and “father” had custody of, and raised together, the minor child. Prior to marriage, mother adopted the minor child while “father” was in Iraq working. The intention of the parties was for “father” to adopt the minor child after the “father” returned from a job in Iraq and the parties were married. Before “father” returned from Iraq, before the parties were married and before the “father” could formally adopt the minor child, mother broke off the relationship with “father.” “Father” filed a civil lawsuit for child custody against mother.

The trial court dismissed “father’s” action for child custody. The trial court found that it would not be in the best interest of the minor child for said minor child to be cut off from “father” but that mother had not acted contrary to her paramount parental status. The trial court did not actually specify the exact reason for the dismissal of “father’s” child custody action. “Father” appealed and mother did not file any brief in opposition.

The North Carolina Court of Appeals reversed the trial court’s dismissal and remanded the case back to the trial court for the establishment of a child custody and visitation schedule. The North Carolina Court of Appeals, based on the actual findings of fact by the trial court, reversed the trial court’s determination that mother had not acted contrary to her constitutionally protected status as parent. Rather, the North Carolina Court of Appeals found that mother had, in fact, acted contrary to her constitutionally protected status as parent. The North Carolina Court of Appeals found as such based on two particular points. First, it found it compelling that mother had allowed “father” to make decisions relating to the minor child. Second, the North Carolina Court of Appeals noted that mother had brought another person (“father”) into the household for an indefinite period of time with no expectation of that relationship ending. Ultimately, the North Carolina Court of Appeals ruled that “father” was entitled to child custody and/or visitation because mother had acted contrary to her constitutionally protected status as parent and it would be in the minor child’s best interest for “father” to have parenting time.

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.