Child Custody

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.

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.

Tips for Dating Divorced with Children

Published on: November 1, 2011 | On behalf of Arnold & Smith, PLLC

As if dating someone new is not hard enough to begin with, there are plenty of folks who are in the dating pool who are divorced with children. A divorced parent who has a child (or children) is likely to bring with them all sorts of additional issues which would not likely be present with a nonparent. Fear not, what follows is a series of “rules” for dating a single parent from Yahoo!(as reported from the child’s perspective):

First, don’t lay it on too thick. Don’t laugh too much in a disingenuous or fake way. Rather, be genuine and be yourself. It may be better to earn the child’s respect than to worry about trying to make the child like you.

Second, no PDA (public displays of affection) in front of the child. The child is going to have enough other thinks to worry about and be uncomfortable about without having to watch you make out with their parent. A quick peck on the cheek may be acceptable under some circumstances. But, it is better to be discreet about such things.

Third, let the child determine how quickly the relationship develops and how deep it becomes. The child may be self defensive about getting too close to you for fear of the relationship between you and their parent deteriorating and having you out of their life. Similarly, the child may feel apprehensive or “disloyal” if they get close to you because of their relationship with their other parent (the one you aren’t dating).

Fourth, don’t be indifferent to the child. This is the opposite of rule number one (1). While you shouldn’t lay it on too thick, you shouldn’t be completely indifferent either. It will also make the child feel uncomfortable if you show interest in their parent and then disregard them or don’t pay a normal amount of attention to them.

Fifth, know your role in the “family.” Remember that you are not the parent and it is not your place to chastise or correct the child. Even if your dating partner tries to pull you into the middle of the situation, observe healthy boundaries. If the relationships (both with the parent and with the child) progress, you may feel comfortable become involved. But, do so diplomatically.

Sixth, be open with the child. Share information about who you are: your life, your background and the like. This will help you and the child to connect on a deeper level and for them to have a better understanding of where you might be coming from on different issues. Also, if the child doesn’t think you are a freak, they are more likely to be comfortable with your relationship with their divorced parent.

Seven, follow the golden rule. Treat the child like you would like to be treated if you were in their position. Try to be empathetic and understand the confusion and various pressures the child may be feeling. Remember, whatever it is that made their parent available to date you is likely to be a difficult situation for the child. Keep that in mind.

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.