Monthly Archives: September 2013

Be Careful About What You Remove From Social Media, Too

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Social Media Perils

There is a seemingly endless stream of problems that can arise from social media and technology when it comes to divorce and family law.  If you have spoken with a family lawyer lately, you likely heard a warning to be very careful about what you put on the internet.  That is an important rule of thumb always, but especially if you are involved in a divorce or custody case.  It is also important to be careful about how you search for information about the activities of a spouse or others.

This is becoming such an important topic that a few hundred North Carolina family lawyers recently met in Greensboro specifically to learn about the criminal and civil liabilities that can arise for ourselves and our clients from various digital activities.  The program addressed a number of the topics, some of which I’ve addressed in earlier blog posts, but one important additional topic is “spoliation.”  Spoliation of evidence is the legal term for when someone deletes or destroys evidence that is potentially relevant in a case.

If a party in a divorce or other family law matter intentionally deletes social media posts, for example, because they might be damaging to the case, that person might be guilty of spoliation.  The party, and his or her lawyer if the lawyer advised it, can be sanctioned or otherwise in trouble with the court.  At the beginning of a case, a lawyer will often send a “spoliation letter” to the opponent or anyone else who has relevant evidence, warning them to preserve the evidence that must be turned over.  This is another reason to be very cautious about what you share online — you may not be able to delete it in the future without causing significant problems.

So, if you are concerned about things you may have posted online in the past, be very careful about “cleaning up” your Facebook page or deleting old Tweets and emails.  You may cause yourself bigger problems if you get caught destroying evidence.  Think twice before you post anything online, and if you are in the middle of a case and are worried about your social media presence, talk to your lawyer about your concerns.

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6 Reasons Why You Need a Separation Agreement

This is a great article advising NC couples on why they are likely to need a separation agreement, even if they think it might be unnecessary.  Even if you and your (soon-to-be former) spouse expect to keep things civil and cooperative through your split, there may be important reasons to protect yourself with a separation agreement. 

5 Things to Know About Stepparent Adoption

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Stepparent Adoption

Stepparents generally have few or no legal rights or responsibilities when it comes to their stepchildren.  In some cases where a stepparent is the only mother or father the child has known, however, or where the family wishes to make the bond of family “official,” adoption of the child by the stepparent may be possible.  Here are five things to know about stepparent adoption in North Carolina:

1.  A stepparent who adopts agrees to become the legal parent of the spouse’s child, and to assume all the rights and responsibilities that the child’s biological parent would have.  Adoption is for life, even if the adoptive parent and biological parent divorce.

2.  Consent must be given by: (1) the parent who is the stepparent’s spouse; (2) the parent who is not the stepparent’s spouse (if necessary); (3) a guardian of the minor child; and (4) the minor child if 12 or older.

3.  In order to file the petition for stepparent adoption, the child needs to have lived primarily with the stepparent for at least 6 months immediately before filing.

4.  The stepparent who adopts must be legally married to the parent who has legal and physical custody of the child.

5.  The parties in a stepparent adoption may agree to release past due child support payments and attach the agreement to the adoption petition.  Otherwise, even a parent who has consented to adoption by a stepparent, continues to owe any past-due child support.

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Considering the Child’s Preference in Custody Decisions

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Child CustodyWhen children are old enough to have an opinion on such things, many families wonder whether the child’s preference on whether to live with mom or dad can or should play a role in the final decision.  Not surprisingly, the answer depends on the situation.

Situation One:  Everybody Agrees

In practice, joint agreement among the adults involved in the custody matter is the most common way to resolve custody questions.  Thus, if the child and the parents (or other adults involved) are in agreement about where the child should primarily live, then the child’s wishes can be honored.  To the extent that a child can make his or her wishes known and the adults agree, the child can essentially “decide” where to live.  This is not uncommon, since the child may clearly be more bonded with one parent, and the parents may share the understanding that the child needs to live with the more bonded parent.

Ideally, parents know their children the best and are in the best position to make decisions about how to best meet the needs and best interests of their child.  If parents can come to mutual agreement about living arrangements, then they can also be flexible to revisit which home would be best if the child’s needs change as he or she gets older.  So, if the needs of the child begin to shift as the child ages into the teenage years, the adults may be able to go along with the child’s wishes if, for example, he feels that he would be better off living with Dad for a few years.  As long as everyone agrees, the custody arrangement is flexible and the child’s wishes can carry as much weight as the adults give them.

Situation Two:  One Party Disagrees

In contested cases where the parties (and perhaps the child as well) do not agree on how to resolve the custody matter, then the matter will likely be decided by a judge in domestic court.  In North Carolina domestic cases, there is no specific age at which the child’s opinion must or may be considered.  The judge has no obligation to find out the child’s opinion, or honor it once given.  Instead, the judge has discretion to give the child’s wishes as much (or as little) weight as he finds appropriate under the circumstances.  Judges are tasked solely with determining what is in the child’s best interests, not what the parents or the child prefer.

In determining what is in the child’s best interests, judges look at a number of factors, including the parents’ physical and mental health, the provision of affection and stability, sensitivity to the child’s needs, and the nature of communications between the parents.  Since each judge has complete control to weigh and balance a number of factors, it is very difficult to determine whether the judge’s decision will mirror the wishes of the child.  This is true even if the child is 16 or older and expresses a strong preference; unlike many other states, the judge may determine that the child’s best interests are served by completely overriding the teen’s preference.

Although this standard may be harsh in some cases, the reality is that many judges exercise their discretion to consider more thoughtfully the reasonable wishes of a child as he or she gets older.  Judges are certainly smart enough to know that keeping a child in a home where he or she does not want to stay becomes more and more difficult as the child passes 14, 15, or 16 years old.  Therefore many judges give more consideration to a teenager’s wishes when those wishes correspond to the emotional needs and relationship issues of the teenager.  The bottom line is that, in cases where a judge must determine custody, the judge is bound only by the best interests of the child, and will heed the child’s input only to the extent that it illuminates what is in his or her best interests.

Stepparents and Child Support

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Stepparents and Child Support

Lots of parents and stepparents in North Carolina wonder whether the stepparent’s income affects the amount of child support that is owed.  For example, if dad remarries a woman who has quite high income or assets, will it mean that he is obligated to pay more in child support?  If he cannot or does not pay for some reason, can his new wife be required to pay child support on his behalf?

In North Carolina, stepparents have absolutely no duty of support to stepchildren.  The obligation of a stepparent depends on whether the stepparent voluntarily act in loco parentis, which means in the place of a parent.  Someone who is acting in loco parentis “has assumed the status and obligations of a parent without a formal adoption.”  This is reviewed on a case by case basis, and the question is whether the stepparent intended to assume such obligations toward the stepchild(ren) as support and maintenance.

Even if a stepparent has assumed the obligation of paying support, that obligation usually ends if the stepparent and parent get divorced.  A stepparent may sign a notarized agreement to pay child support, and that agreement would be enforceable even after divorcing the child’s parent.  Even then, however, the stepparent’s obligation to support the child would still be secondary to the child’s legal parents.  Courts can only order the stepparent to support the child if the natural parents are unable to provide any support or the needs of the child are greater than the abilities of the natural parents to provide.

Contributions of a third party (stepparent) may be used to support a deviation from the NC Child Support Guidelines.  This generally requires that the parent who receives the child support on behalf of the child has a higher burden to prove the actual expenses of the child and how much contribution is made by the stepparent.  This is quite unusual, but possible.  The bottom line, however, is that as a rule, a stepparent has no obligation to pay support for his or her stepchildren.

Types of Adoption in NC

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Adoption in NC

Thanks in large part to the internet and social media, many of us have the experience today of keeping up with the adoption journeys of friends and family members all over the country.  Like many other family law issues, however, adoption laws and practices vary from state to state.  So people often wonder what types of adoption are available to us in North Carolina.  There are a number of adoption options available, but the most common types of adoption in NC are private and agency adoptions.

Private Adoption

Private adoptions in NC involve placing the child directly from the biological parent(s) (or other placing party) to the adoptive parent(s).  In a private placement, the biological parent will receive a copy of the adoptive parent’s preplacement assessment (home study).  Thus the biological parent will know the adoptive parent’s identity and the detailed information contained in the preplacement assessment.  Private adoptions can take place within North Carolina or between states.  In an interstate adoption, the Interstate Compact on the Placement of Children sets out further requirements that the parties must meet.

An “adoption facilitator” is a person or non-profit entity that assists biological parents in locating and evaluating prospective adoptive parents.  These facilitators are not licensed in North Carolina and may not charge the biological parents for their services.  Placements that are assisted by an adoption facilitator are generally private placements.

Agency Adoption

An agency is an entity that is “licensed or otherwise authorized by the law of the jurisdiction where it operates to place minors for adoption.” N.C.G.S. § 48-1-101(4).  A county’s Department of Social Services also qualifies as an agency under this statute.  In an agency adoption, the agency places the child with the adoptive parent, and the adoption may be either open (identities of the biological and adoptive parents are disclosed) or closed.  Agency adoptions can occur within North Carolina, between states, or internationally.

International Adoption

International adoption is another option for North Carolina families.  Usually the adoption is finalized in the country where the child is a citizen, and it may be refinalized after the family returns to North Carolina in order to obtain an NC foreign birth certificate.  International adoptions require compliance with the laws of the child’s country of origin, as well as immigration laws and the laws of North Carolina.  International adoptions are typically the most expensive to pursue.

There are several other types of adoption available in North Carolina, such as stepparent adoption and surrogacy.  There are many resources online to help you start researching what type adoption would best fit your family.  Check out NC Kids Adoption and Foster Care Network, this list of agencies licensed in NC, and state statutes on adoption and child welfare to get started.

Legal Separation in North Carolina

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Separating from spouse

People often seem to be confused about the process of separating from a spouse.  The requirements for marriage, divorce, and other family law matters are determined by state law, rather than federal law.  Therefore, the laws on these issues vary dramatically from state to state.  Movies, media, and even the experiences of friends in other states therefore often mislead and confuse people about how to legally separate from a spouse in North Carolina.

In North Carolina, in order to get an absolute divorce on the grounds of separation (which is most common), a couple must have been separated for a period of one year.  There is no need to prove fault or obtain a court decree.  Separation simply means that the couple physically lives separate and apart — not under the same roof.  At least one of the parties must intend to cease cohabitation — the intent of the other spouse is irrelevant to the claim.  In North Carolina, there is no need to show that both parties agreed to the separation or to have a decree of the court declaring that they have separated.  After a year has passed since the couple stopped cohabiting, either party can secure an absolute divorce upon proof that the couple has been separated for the statutory period of one year.  Once that is proven, neither spouse can contest the divorce, as long as all other technical requirements have been met.

Even if you have been separated for a year, however, talk with a lawyer before filing for absolute divorce to ensure that you do not forfeit any important claims that may be available in your case.