Can Gun Ownership Affect Child Custody?

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.

Do I Really Need a Prenup?

Prenup

When most of us think of prenups, we probably think of wealthy tycoons or Hollywood stars who are marrying partners much younger and less financially stable than they are.  In the real world, however, there are several reasons why a prenup (aka “premarital agreement”) might be right for you and your future spouse.

Make Your Own Rules

North Carolina couples who plan to marry have two options: (1) marry without a premarital agreement and accept all of the legal consequences of our state’s family, estate, and trust laws; or (2) enter a premarital agreement before marriage that will enable the couple to choose whether and how certain family, estate, and trust laws will apply to them.  Essentially, if you get married without a premarital agreement, you are allowing the state to write your agreement for you — the legislature’s pronouncements on family law, estate law, and trust law (and their amendment and repeal over time) will guide the court in the event you divorce.  You might think of this akin to dying without a will — someone else will make the rules about what happens to your family and property.

A valid, carefully crafted premarital agreement, on the other hand, allows you and your betrothed to choose the approach that will work best for you if you ever separate.  As a couple, you know your unique circumstances better than anyone else, and you may benefit from rejecting the one-size-fits-all approach of the state statutes.  Instead, you have an opportunity to determine your own path in the event that things go south.

Address “Business” Issues Before Walking Down the Aisle

There’s no point in denying it:  negotiating a premarital agreement is not the most romantic part of wedding planning.  While the most important, inspiring aspects of a wedding are about love and commitment, the unavoidable truth is that marriage is also a business decision.  That’s true whether you enter a premarital agreement or not.  In the event that you and your future spouse divorce, your property will be divided as if you two had a business partnership.  Business people make contracts to govern the division of money and property all the time, so it’s not absurd to think that you should too.

Although it can be difficult to buckle down and discuss finances when you’re in the haze of wedding planning, before the wedding is actually an ideal time to work through these issues.  You’re not clouded by hurt and anger the way many are when they are faced with the business aspects of separating.  You can work together on realistic solutions that will work for both of you if you ever separate.  Plus, even the most open, in sync couples can benefit from going over their finances and getting everything out in the open before committing their lives to each other.  For many, it can be very freeing to feel legally and financially secure before the wedding.  A premarital agreement can ideally help couples minimize financial stress so they can focus on their relationship.

But How Do I Know If I Should Get a Prenup?

With a few exceptions, most couples can benefit from having a premarital agreement.  They’re not just for reality starlets and real estate moguls; anyone who has property or debt, owns a business, has a professional license, has children from another relationship, or has a significantly higher or lower income than their partner should think about getting a prenup.  Retirement savings, valuable collections, and business assets are just a few of the things that can be addressed and protected in a premarital agreement.  Whatever the financial circumstances of you and your future spouse, chances are that you have assets or debts that you would prefer to make your own decisions about together, rather than leaving the decision up to the complex and changing laws of the state.  If you are interested in discussing a premarital agreement, please contact me to schedule an appointment.

New Year’s Resolution: Estate Planning

Estate Planning

It’s hard to believe that we’re almost halfway through January already.  How many of us have already abandoned our New Year’s resolutions, after just two weeks?  How many of us forgot to make a resolution at all this year?  Here’s a suggestion for a resolution that will benefit both you and your family and will be relatively simple to complete:  make an estate plan this year.  We all know that it’s an unpleasant thing to think about — thinking deeply about your wishes for yourself, your family, and your property when you die.  Clients, however, seem to overwhelmingly feel great peace and satisfaction knowing that they have done their best to make things easier on their loved ones when that time comes.

To get started on the process, list and compile documents relating to your assets, insurance policies, properties, and valuable personal items.  Gather account and policy numbers.  Then talk with a financial planner and a lawyer about your needs.  In addition to a will, which handles most property, most people also need a living will, a power of attorney, and a health care power of attorney.

  • The living will declares that you wish to die a natural death and do not want extraordinary medical treatment or artificial nutrition or hydration to keep you alive.
  • The health care power of attorney appoints a person of your choice to make your medical decisions if you became unable to make them for yourself.
  • The power of attorney (a.k.a. durable power of attorney) gives a person of your choice the legal right to act on your behalf as your “attorney-in-fact.”

These documents can alleviate the stress on your family if you should become sick or incapacitated in the future, and they give you the reassurance that your wishes will be carried out.  If you or your family members have been through significant changes, such as a divorce, a new baby, or the death of a loved one, you may need to update or revise the estate documents that you’ve already made.  If you’ve been putting off thinking about these things, this is a new year’s resolution that is easy to keep and will give you great peace of mind!

Related resource:

Dial 2-1-1

This isn’t specifically a family law topic, but it is definitely a resource that could be helpful to many families in crisis.  Thus, I thought I would share some information that I learned this week.  I had no idea that this resource existed, so please forgive me if you are more clued-in than I.  We’ve all heard of dialing 311, 411, and of course 911.  Did you know that dialing 211 in Catawba County and counties across the state will connect you to a multitude of resources in the community?  The United Way of North Carolina is the state sponsor of the service, and the organization and its local partners provide callers with access to a vast network of NC community health and human service resources.

As you can see from the brochure snapshot above, the service helps connect callers (and visitors to the website) to organizations that can help provide basic needs like food pantries, counseling, senior services, smoking cessation resources, and even volunteer opportunities.  As the website states, “the first step in finding help is knowing who to call.”  The phone line is free, confidential, always open, and available in other languages.  We are fortunate to have this resource available here in Catawba County, as well as the surrounding counties — Burke, Caldwell, Alexander, Iredell, and Lincoln counties are all covered as well.

This holiday season, if you find yourself (or someone you know) in need of resources from heating assistance to transportation to child care, calling 211 or visiting nc211.org is a good way to start looking for help.  Also, if you’re looking for a way to get involved in the community and volunteer during the Christmas season and beyond, you can find local organizations looking for assistance at 211 as well.  Please help spread the word that this valuable resource is available to North Carolinians!

Do I Really Need a Divorce Lawyer?

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.”

Cohabitation in NC

CohabitationCohabitation has become more common and more accepted in today’s society.  Statistics vary, but some sources claim as many as 60 percent of couples today live together before marriage.  People of different generations, backgrounds, and beliefs could argue all day about whether cohabitation is a good thing or not.  In the end, though, the practice is widespread enough that it is important for unmarried couples to think about the legal options and consequences when they decide to live together.

First off, the North Carolina law that made unmarried cohabitation illegal was struck down as unconstitutional by a superior court judge in 2009.  That decision is not necessarily binding on the whole state, however, so cohabitation may still technically be illegal.  It is unknown so far what other state courts would say on the matter, but the law against cohabitation (passed in 1805) is very unlikely to be enforced.

North Carolina does not recognize common law marriage, and there is no “legal status” associated with unmarried cohabitation.  Thus, a couple who lives together for many years and then breaks up, is still not usually entitled to the remedies associated with divorce:  equitable distribution of property and alimony.  Property is simply divided according to who owns title, and dividing personal property (i.e. furniture and valuables) can of course become very difficult for those whose lives and money have become so intertwined.

So how can cohabiting couples protect themselves and plan for the future?  First, don’t be afraid to talk about these issues before moving in together.  If you’re close enough to live together, you’re close enough to talk about protecting yourselves and each other financially if things end poorly.  Think of this just like betrothed couples discussing a pre-nup — it’s unpleasant to think about, but in some cases essential to protecting your interests.

Second, unmarried couples in North Carolina are free to make contractual agreements to establish rights and obligations should the relationship end.  So although unmarried couples are not granted the rights associated with marriage, they can make express agreements about dividing property in the event of a break-up, and the agreements will be honored by courts (as long as they are not based upon sexual services).  Before acquiring any substantial property interest together, it is very wise to make a written agreement about what would happen to the property if the relationship ended.  It may be a touchy subject, but it’s much easier to reach an agreement when you’re on good terms than it will be if things go south.

Note:  North Carolina still does not recognize same-sex marriage, so this advice applies to same-sex couples who consider themselves married, as well.  Although the law denies the privileges and rights of marriage to same-sex couples, there are ways to secure some of those rights through contract before (and after) joining your lives together. Goodness knows it’s not romantic, but it’s important!

Be Careful About What You Remove From Social Media, Too

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.

Link

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

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.

Considering the Child’s Preference in Custody Decisions

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.