Articles Posted in Visitation

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.

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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.

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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.

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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.

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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.