Tag Archives: Child 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.

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.

Link

The Right Questions to Be Asking in Family Law

Click the link above to read a to-the-point article that gives smart advice about questions that you might be pondering if you are going through a divorce, especially with kids.  Be sure to brainstorm and keep a list of important questions and topics that you want to review with your lawyer before your next meeting.  Lawyers can’t read minds — if an issue is important to you, bring it up so that we can help you address it.

Separated Spouses and Sex, Part 3

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Custody

             When a judge is deciding on custody issues in North Carolina, the standard he or she must consider is always the “best interests of the child.”  It is no different when it comes to the sex lives of the child’s separated parents – the question is whether the parents’ sexual relationships are affecting the best interests of the child.  So, sex during separation can certainly have an effect on custody if it impacts the child.  This will depend on the circumstances of the relationship.  If a parent, for example, engages in sex with numerous partners while the child is in the home, it would not be surprising for a judge to decide that the parent is not acting in the child’s best interests.  Circumstances vary, but especially when your kids are involved, it is wise to err on the side of caution.  During the separation period, the safest course is to keep any sexual activity confined to times when your child is staying at the other parent’s house.  Being responsible and aware of what your children see is both good for your kids, and good for your custody case.

Discovery & Court Testimony

             Discovery is the process of both sides gathering information before a court proceeding.  This is done through interrogatories, which are written questions that require written answers, and depositions, which are out of court testimony under oath.  Depositions usually take place at an attorney’s office, and a court reporter is present to make a transcript of the testimony.  In family law cases, questions about the parties’ sexual relationships are common in both discovery and court proceedings.  As we’ve seen during this discussion of sex during the separation period, sexual behavior can be relevant to multiple issues during divorce and custody proceedings.  Opposing attorneys might also ask intimate questions to put you on the defensive.  Thus, sexual and relationship questions are likely to arise during your case.  As unfair and invasive as it may seem, your personal life is not necessarily private during a divorce, so you and your lawyer must be prepared to face questions about your behavior, possibly from both a judge and the opposing party.

Bottom Line:  Should I, or Shouldn’t I?

             So, over the course of three posts, we’ve addressed a number of issues that can arise from having a sexual relationship while you are separated from your spouse.  Divorce is complicated – emotionally, financially, and legally.  Be honest and realistic with yourself about this issue:  sex will most likely make your divorce process even more complicated.  Understand and consider the consequences that can follow from your decision.  Emotions run high during divorce, and moving on too quickly can make it more difficult to resolve the issues that you and your spouse face.  Your best bet is to focus your energy on getting through the separation and resolving the remaining issues of your marriage; save the dating and sex for after the divorce.