Children, Support, and Property

What if my wife tries to move the kids out state?

If there is no custody order or pending custody case, then it is hard to prevent a parent taking a child out of state. This is because both parents have equal rights to the child. If there is an imminent threat to the child or they are taking the child out to evade jurisdiction, then you can try to get an ex parte order granting you custody until a judge can determine custody. If there is a pending custody action or a custody order and they try to take the child out of the state, you can contact that state’s Read more

Do I need to use a Guardian ad Litem/Custody Evaluator?

No, a custody evaluator and/or a Guardian ad Litem are not required. A Guardian ad Litem is an attorney that is appointed to be the child’s attorney and speak on behalf of the child’s best interests. They speak to the child and advocate for what the child wants in terms of custody and speak to the Judge on their findings. A Guardian ad Litem is not necessary but is a good tool to use if you feel that your child’s voice is not being heard and you feel that the other parent is manipulating the child. The judge can appoint Read more

When can I modify custody?

In order to modify a permanent child custody order, you must first prove there has been a substantial change of circumstances that affects the child and has occurred since the date of the initial order. This substantial change of circumstances can be either a positive change or a negative change, but it must affect the child. After you have met that burden, the court then determines what is in the best interest of the child/children.

Can a parent refuse to allow visitation if child support is not paid?

The appropriate remedy for someone who does not pay their child support is go in front of a judge and have the judge determine the appropriate solution. If the court initially ordered child support to be paid, then the appropriate remedy is to file a Motion for Contempt for their failure to pay the required child support. If the child support was an agreement between the parties and was not incorporated into a court order, then you would have to Motion the Court to require the party to pay child support. One should not refuse visitation with the parent based Read more

If both parents share custody does anyone pay child support?

It depends on the parties’ incomes, who pays the health insurance, child care costs, and other expenses on behalf of the child. It also depends on how many overnights each party gets with the child. In order to determine if either party has to pay child support one should see an attorney who can apply your specific facts to the situation and see if child support is an option.

What is joint custody? What is sole custody?

Joint physical custody is the sharing of the children between the parties. Sole physical custody is whereby one party gets custody of the children for a significant period of time. You must be careful to clarify if you are discussing physical or legal custody. While physical custody relates to where the children are staying, legal custody is the ability of the parties to make important decisions for the children (i.e. education, religion, medical, etc.). Joint legal custody is where the parties both have decision-making authority and must agree with one another. Sole legal custody is where one parent has the Read more

Who will get custody of our child?

It depends. In North Carolina child custody is determined by using a standard whereby the judge will determine the best interest of the child. The judge looks at every relevant factor that has to do with the children i.e. the stability of the parties, the living situation of the parties, who encourages the child in educational endeavors, and every other factor that has to do with the children. While parties can contract outside of the court as to who has custody of the children, the court always has the opportunity to come in and determine the best interest of the Read more

Do the other issues – child support, child custody, alimony, and property – have to be decided before the divorce is final?

In North Carolina, support, custody, alimony and property do not have to be decided before the divorce is final. However, if you want to preserve your claim to alimony and equitable distribution, you need to file these claims with the court prior to the Judgment of Divorce is granted. If the judge signs the divorce prior to you asserting either of these claims, you will be barred from later bringing these claims in front of a judge. Both equitable distribution and alimony do not have to be decided prior to a Judgment of Divorce, they merely have to be pending.

Can I get maintenance or will I have to provide maintenance to my spouse?

In a divorce action alone, it is merely the legal ending of your marriage.  An Absolute Divorce action does not decide the issue of maintenance. If you want to add the claims for post-separation support and alimony, you can, but an Absolute Divorce action alone is not enough. In North Carolina, alimony and post-separation support are based on whether you can prove that you and/or your spouse are dependent and whether you and/or your spouse are considered the supporting spouse. A family law attorney would have to look at the facts of every case to determine whether or not support Read more