Category Archives: Custody

Can Gun Ownership Affect Child Custody?

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13077447_mlRegardless of your stance on gun rights or your comfort level with guns, all parents worry about their children having access to firearms.  If you are going through a separation or divorce, you might be concerned about whether any firearms at your ex’s home are secured away from the children.  Or you might worry that the judge will question your judgment or parenting because you keep firearms in your own home.  If you own guns, you might wonder whether you should get rid of them or whether they might impact your custody case.

First of all, in cases where domestic violence is alleged and a protective order is issued, the Court will often order the defendant to surrender his or her guns to the Sheriff. Even when violence is not an issue, however, the Court may take gun ownership and safety into consideration in determining custody issues. As you have probably heard if you have ever talked to a lawyer about a custody case, the Court’s sole concern in determining child custody is what is in the best interest of the child. The presence of firearms in the child’s environment is therefore certainly within the purview of the Court.

While safe firearm ownership and storage may be of interest to the Court, there is case law that suggests that the Court must make findings that the parent’s gun ownership specifically endangers the child in some way in order for the Court to factor it into a custody determination. If a witness testifies, for example, that Mom routinely leaves her loaded handgun unattended in her purse or under her pillow where her child could find it, the Court may find that she is endangering her child and order her to either secure her weapon or surrender it until her child reaches 18. On the other hand, a mom who owns numerous firearms, but is vigilant about keeping them properly secured and beyond the reach of her children, is unlikely to be negatively affected in a custody case. Since the judge’s chief concern is always the safety and well-being of the children, a parent who shows the Court that she is a safe and responsible firearm owner probably has little cause for concern about being a gun owner who is involved in a custody case.

It is, of course, wise if you are in a custody dispute, to ensure that all of your firearms and permits are properly documented and updated and that you can provide the Court with evidence (such as photos, testimony of friends, or receipts for gun safes) that your firearms are securely stored in your home. If you anticipate that this will be an issue in your case, discuss it with your attorney early so that you can plan to resolve any concerns of the Court and ensure that your gun ownership does not interfere with your custody case.

Our Split Is Amicable…Can My Ex and I Use the Same Lawyer?

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Sharing one lawyer?

Some might find this hard to believe, but divorcing couples sometimes ask if they can share one lawyer.  This makes a lot of sense, in theory.  If you and your soon-to-be-ex agree about how you will divide your property and raise your children, then you might be eager to simply get the divorce process behind you and move on with life.  It seems rational and practical, then, to have one lawyer draft a simple agreement that reflects your wishes, sign it together, and get going.

The answer to the question in the title above, however, is NO.  Although such an arrangement might seem like a smart money- and hassle-saving arrangement, there are important reasons why a lawyer cannot represent both a husband and wife in a divorce.  The ethical rules for lawyers prohibit representing both parties in an adversarial, or potentially adversarial, proceeding. Even if you are the rare ex-couple that gets along brilliantly, you are still opposing parties in a legal matter.  No lawyer can adequately represent both sides of a dispute, without favoring one over the other.

Like anyone going through a divorce, you deserve a lawyer who has only your interests in mind as you navigate the divorce process. Even if you and your spouse agree that your case is cut and dry, if you want legal guidance, you’ll each have to seek your own.

Book Review: It Doesn’t Have To Be That Way

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Book Cover

Laura Wasser is a divorce lawyer in California whose clients include a bevy of Hollywood celebrities, but don’t hold her association with Kim Kardashian (and now apparently, Khloe) against her.  I was skeptical of the advice of a divorce lawyer with clients who seem to marry and divorce as almost a hobby.  What would this Hollywood lawyer say that would have any relevance to my clients in North Carolina?  The answer is:  plenty.  In It Doesn’t Have to Be That Way:  How to Divorce Without Destroying Your Family or Bankrupting Yourself, Ms. Wasser gives wise, practical advice about how to move through the process of ending your marriage without ruining your life or your children’s lives.

Wasser’s book is not about dishing celebrity dirt — it’s about her advice on moving through each stage of the divorce process.  She pays special attention to keeping the process as cost-effective as possible and helping people reframe the way they see their fading relationships.  She is matter-of-fact, and although I suspect that nobody would agree with everything she says about relationships (I don’t!), her insight is valuable.  She is especially good when talking about co-parenting with an ex (or several exes), since she is open about her own experiences raising kids with two exes.  Among the topics Wasser covers in the book:

  • Knowing when you should divorce
  • Separating
  • Finding a lawyer
  • Custody
  • Spousal support
  • Child support
  • Dividing assets and liabilities
  • Settlement

California law is quite different from North Carolina divorce and family law in some respects.  Wasser nevertheless does a good job of addressing the divorce process and what to expect in a way that does apply to North Carolina families.  I recommend this book to those thinking about divorce or already in the middle of the process.  Not every piece of advice in the book will apply to each person’s situation, and North Carolina law differs in some ways from what she discusses, but overall this is a good primer on how divorcing works, how you can manage it, and how you can thrive when it’s behind you.

*Note: This book is available in my firm’s library for clients to borrow as needed, along with other books on divorce and family law issues.

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Ten Tips for Holiday Co-Parenting

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Holiday Co-Parenting

For newly-separated or divorced parents, the holidays can be especially tough.  For kids with two households, this time of year means lots of shuffling back and forth, possibly feeling torn between parents, extended families, and old traditions.  Adjusting to life after separation takes its toll on everyone around the holidays:  kids, parents, grandparents, in-laws, and friends.  Here are some ideas to make the holidays easier for you and your kids after separating:

  1. Start your planning for the season by rereading your parenting or custody agreement — what do its provisions on holiday scheduling say?  Who is scheduled to have the children and when this year?  Whether it is very specific or leaves some room for compromise, know what the agreement says, because it is your fallback if you and your ex disagree about the holiday schedule.
  2. Accept that your request to change the arrangements in the custody agreement is just that — a request.  Be prepared for the other parent to say “no” if your plans don’t fit with their scheduled time.  Compromise is great, but each parent is within his or her rights to make plans and stick to them for their scheduled parenting time.  Don’t punish each other for making holiday plans and wanting to keep them.
  3. Schedule a time to discuss each parent’s holiday priorities calmly and without the children around.  Think about what events are most important to you (and the kids) and talk calmly with your ex about how you can coordinate the schedule to make as many of those important events as possible happen this year.  Again, be prepared to give as much consideration as you get.  While you’re talking, go ahead and coordinate on the kids’ Christmas lists too — who will give what to whom?
  4. Compromise is the name of the game in co-parenting generally, and particularly during the holidays.  This time of year is all about family togetherness, and that can get very sticky when children now have two families.  The most constructive solution is to remember to make the children the focus and show them how you and your ex can work together to make sure that everyone still has a good time.
  5. Don’t negotiate the schedule in front of the kids.  Particularly if the separation is new, parents can easily get emotional and territorial about sharing the children this time of year.  It’s hard on kids too, so make it easier by shielding them from the discussion.  Work out the schedule between the two of you (and your significant others, if applicable), and present a united front to the children about the holiday schedule.
  6. You are the parents, you determine the schedule.  Don’t ask your children to choose which house or family they prefer on certain days — that puts them in the middle and tests their loyalty to each side of the family.  You know your kids and which events mean the most to them.  Work together to decide where and when they will spend time with each of you.
  7. Be flexible with the way you think about holidays.  If the kids are going to be travelling with your ex on Thanksgiving Day, plan to fix all of their favorite Thanksgiving recipes from your side of the family and celebrate on Saturday when they are back with you.  Be open to celebrating Thanksgiving, Christmas Eve, and even Christmas day on alternative days rather than the “day of” when the kids are with their other parent on the actual day.  The kids probably don’t care about the actual date, they’re just happy to celebrate again with you.
  8. Make new traditions that the children will remember and look forward to.  Change is inevitable after divorce, and some beloved traditions may no longer work for your family.  Look for ways to incorporate new traditions for everyone to cherish.
  9. Make plans for your time without the kids.  When your children are with your ex on a holiday, you could certainly be forgiven for feeling lonely and bitter.  Don’t sit alone and stew, make plans to spend the holiday with friends and family.  Of course you’ll miss your children, but try to look at the day as an opportunity to reconnect with your other loved ones, free from the distractions of looking after the kids.
  10. Be gentle with yourself and your family — adjustment is hard and takes time.  Again, holidays are about family, and it is just plain old hard sometimes to adjust to sharing your family.  Remember that it’s probably just as hard for your ex.  Give yourself some leeway if you get frustrated or lash out.  Apologize, move on, and stay focused on the children.
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Keeping Text Messages for Court

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Texting and Family Law

If you have been involved in a family law case (especially a custody dispute or a divorce where infidelity is an issue), your lawyer has probably talked to you about the importance of documenting everything.  I generally think, the more information you can gather, the better.  Yes, it will take some time for you or your lawyer to sort through stacks of details about your life looking for the relevant statements, dates, events, and documents.  Yes, it is a difficult way to live — cataloguing proof or otherwise documenting every little thing that happens that might have an impact on your case.  But when it comes to your property and especially your children, I like the “better safe than sorry” approach.

In some co-parenting situations, calm and effective communication can be difficult.  These parents often resolve to communicate primarily through email and text messages.  We all know how to keep an email as documentation of communication, but how do you keep a text message for use as potential evidence in court?  Here are a few options for documenting communication by text message:

  • Take screen shots of the messages:  search online to find out how to take a screen shot of exactly what appears on your particular type of phone; save the image and print it out to keep or show your lawyer;
  • SMS Backup+:  this is a free app for Android users that automatically backs up your text messages and phone log to your Gmail or Google calendar;
  • Email My Texts:  this is another Android app that costs $4.90 to download and allows you to email, print, and save all of your text messages, as well as export them to a number of other services, like Dropbox or Evernote;
  • iPhone users:  unfortunately, there doesn’t seem to be a reliable app to simply backup or email your iPhone texts like the Android users have; check out this article for advice on how you can keep and access the files that archive your text messages.

Unfortunately for iPhone users, it seems to be a bit more work to document text message conversations than it is for Android users.  With an important issue like custody on the line, though, it will likely be worth it.  Talk to your lawyer about what types of information and communication you should be documenting, and stay on top of it!

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Do I Really Need a Divorce Lawyer?

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Divorce Lawyer

Callers to my office ask this question pretty regularly.  People seem confused about when and whether they need a lawyer to help them through their divorce.  This is a fair question, given the proliferation of online sources for legal forms, documents, and information.  There are lots of places to research your questions, but you also risk “information overload.”  What if different websites seem reputable, but give conflicting information?

The first thing to remember if you research divorce law on your own is that divorce and family law issues are governed by state laws.  So while general information might be a good place to start, focus your research on your state’s law.  An article or blog post about divorce procedures in Nevada will not be very helpful in assessing your North Carolina divorce case.

In some cases, the spouses can certainly negotiate a settlement between themselves, without the input of lawyers.  When is this possible?  It truly depends on each individual case, but generally:

  • The shorter the marriage, the easier it may be to handle alone, because alimony is less likely to be an issue.
  • Few assets and no real estate holdings make it easier to split up without lawyers, because there is less physical “stuff” to fight over.
  • When there are no children involved, and thus no custody and child support issues involved, you may be able to handle things yourself.
  • If you and your spouse are friendly and cooperative enough to negotiate fairly between each other, then you may not need to involve lawyers.

If any ONE of the statements above does not apply to your case, however, then you would be wise to at least consult with a lawyer.  The more complicated your situation is, the more likely you are to need legal guidance and representation.  Ask yourself whether hiring a lawyer would add value to your case — would the financial, time, or peace of mind benefits outweigh what you spend on a lawyer?  When you have children, large assets, retirement savings, or own your own business, the answer is likely “yes.”

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.

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.