Tag Archives: North Carolina

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.

Recording Your Spouse

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Secret Recording

In our digital age, tape or voice-activated recorders are cheap, easy to use, and easy to hide.  But can you hide one in your spouse’s car or office to get evidence of cheating?  No!

In North Carolina, it is illegal to record a conversation without the knowledge and consent of at least one of the parties being recorded.  So you may record your own conversation with your spouse, because you have consented to the recording.  You may not, however, record the conversation of two unsuspecting, unconsenting parties.  Hiding that voice-activated recorder in the car could be a very costly violation of wiretapping statutes, plus any evidence of an affair couldn’t be used against your spouse anyway.

In addition to evidence of cheating, you might want to record your own conversations with your spouse to provide evidence of problems that occur during custody exchanges, or evidence of domestic violence.  Just remember that only conversations in which you are involved are fair game.

One Exception:  Vicarious Consent

There is one exception to this rule, which allows you to record conversations between your children and another party.  In certain situations, you may give consent on behalf of your children, but only when you are concerned about the safety of your children.

If, for example, you suspect that your spouse is abusing your children, you may record conversations between the children and your spouse.  You must be prepared, however, to defend the recording in court by showing that you had a legitimate reasonable fear for your children’s safety.  Your word or simple suspicion will not be enough — you need evidence to back up your fear.

Bottom line:  You can only use a recording device to record a conversation to which you are a party; it is illegal to record conversations of others without their consent.  In limited circumstances, it may be permissible to record the conversations of your children with others.

Spying on Your Spouse

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It shows up in both movies and real life all the time: a stray text message, Facebook chat, or email is seen by the recipient’s husband or wife. A secret is exposed that blows up a marriage or relationship. Whether you have a solid reason to suspect your spouse is cheating or are just feeling suspicious or insecure, it seems that technology has made it easier than ever to check up on your spouse’s activities. With all of the resources available – nanny cams, GPS tracking devices, spyware, voice recorders, etc – it is sometimes difficult for both lawyers and clients to know what kinds of spying are admissible in court, and more importantly, which ones are legal for you to use. If you are determined to look for proof of infidelity or other bad behavior by your spouse, you must be careful about the methods you use – some forms of snooping and eavesdropping could expose you to criminal charges. There are both federal and state laws that limit the ways you can check up on a cheating spouse.

Federal Law

The Electronic Communications Privacy Act (ECPA) of 1986 extended certain wiretapping laws to cover electronic data that is transmitted by computers. It makes it illegal to intercept or obtain unauthorized access to certain types of information. Two subsections of this law are important in the context we’re discussing. Title I applies to the interception of wire, oral, or electronic communication. Title II applies to the unauthorized access to electronic communications that are already held in electronic storage.

You might reasonably think that federal wiretapping statutes are aimed at controlling how the government can investigate terrorism or racketeering. That’s true, but they can also apply to a private citizen trying to catch a cheating spouse. Title I is implicated, for example, if you use a voice recorder to tape a phone call or some form of spyware to intercept your spouse’s emails. Title II is implicated if you “break in” to your spouse’s email or Facebook account.

NC Law

North Carolina has an Electronic Surveillance Act that provides much of the same protection as Title I – it prohibits interception of wire, oral, or electronic communications. We also have laws that are similar to Title II and prevent unauthorized access to another person’s computer, system, program, or network.

State law also provides several privacy-related tort claims that your spouse could possibly bring against you if you access his or her communications without permission. Intrusion upon seclusion is one claim; others could potentially include trespass and intentional or negligent infliction of emotional distress.

In the next few blog posts, I’ll discuss how these laws may apply to specific methods of spying on your spouse. In the meantime, the most important takeaway is to know that certain types of snooping are illegal and some might expose you to lawsuits. Before you do any questionable snooping, research what the law says and talk to your lawyer.

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.

Separated Spouses and Sex, Part 2

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19168112_mAlimony & Post-Separation Support

             Sex during the separation period can potentially be a big problem for a dependent spouse who plans to ask for alimony.  Marital misconduct can be an important factor in the outcome of alimony claims in North Carolina.  While having a sexual relationship after the separation does not constitute marital misconduct, a judge might consider it to be corroborating evidence that an affair was going on before the date of separation.  In an alimony case, the dependent spouse is the one who receives alimony, and the supporting spouse is the one who pays alimony.  In North Carolina, a dependent spouse who would otherwise be entitled to alimony is completely barred from receiving alimony if he/she had an affair while the parties were living together.  Likewise, the supporting spouse may enter a sexual relationship after the date of separation without affecting his/her duty to pay alimony, but the Court could consider it as corroborative evidence of an affair before the separation.  This use of post-separation sex to corroborate an allegation of marital misconduct can particularly become an issue when each party is trying to prove that the other had an affair for alimony purposes.

             Under North Carolina law, alimony and post-separation support that have been awarded to a dependent spouse terminate when the dependent spouse remarries or engages in cohabitation.  North Carolina General Statute § 50-16.9(b) says that “[c]ohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.”  So a sexual relationship that the Court might see as evidence of cohabitation can lead to the early termination of alimony and post-separation support.  If alimony and post-separation support are an issue in your case, talk candidly with your lawyer about protecting your claims if you are involved in a sexual relationship.

 “Heart Balm” Lawsuits

             If you have lived in North Carolina for long, you might have heard that we are one of a handful of states that allow a spouse to sue the person with whom their spouse cheated.  These actions are called “heart balm” actions, presumably because they are supposed to help heal the heart of the jilted spouse.  The first cause of action is called Alienation of Affection, in which the person who files the suit must prove that a third party caused his/her spouse to lose affection for them.  Sex does not have to be part of this claim, but the courts have ruled that sex before the date of separation can help prove alienation of affection.  Just as with alimony, sex that occurs after the parties have separated can be used to corroborate that there was already a sexual relationship before the separation.

             Of the two heart balm torts, Criminal Conversation is an easier claim to prove than alienation of affection, because the jilted spouse who files suit only has to prove that extramarital sex occurred and that he/she was legally married when their spouse was having sex with the third party.  Once again, post-separation sex can be used to corroborate conduct that occurred while the couple was still living together.  The bottom line is that you should know that engaging in sex while you are separated from your spouse could place your sexual partner in jeopardy of a lawsuit.

Separated Spouses and Sex, Part 1

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            This is the first post to the Hickory Family Law Blog, so let’s jump right in with a common and controversial topic:  when is it okay to have sex after you separate from your spouse?  This issue comes up often as people transition from married life back to being single.  Dealing with the hurt and pain that usually accompanies divorce, in addition to the practical issues like finances and custody, makes this is a tumultuous time for many people.  North Carolina requires a one-year separation period before spouses can file for absolute divorce.  During this separation period, it is not unusual for one spouse to want to hold on to the marriage, while the other is ready to move on with life and begin dating again.  It is important to know that sex during the separation can cause many problems and can have a negative effect on your divorce.

Sex With the Ex

            Under the North Carolina statutes, isolated instances of sex with your separated spouse do not constitute a reconciliation that would cause the one-year separation period to start over again.  Resuming a regular sexual relationship (as opposed to isolated incidents), however, can be one factor a court would consider in deciding whether a couple has “resumed the marital relationship,” thus restarting the one-year period.  While you and your spouse may want and mutually decide to reconcile, be aware that resuming a sexual relationship with your separated spouse may have an effect on when the court finds that you were legally separated from your spouse for purposes of post-separation support, divorce, and equitable distribution if the reconciliation is not permanent.  With all of the other complicated emotional, financial, and legal issues involved in separation and divorce, having sex with your ex can make things significantly more complicated and confusing.  It is important to think about the consequences for yourself and your divorce proceedings before resuming a sexual relationship with your separated spouse.  If it has already happened, or you are considering reconciliation, talk with your lawyer about the effect your choices can have on your case.

Criminal Adultery

             Now that we have addressed having sex with the person from whom you’re separated, let’s talk about sex with other people.  Under North Carolina law, having sex after separation, with someone other than your spouse, constitutes the crime of adultery.  Believe it or not, North Carolina General Statutes § 14-184 makes adultery a Class 2 misdemeanor.  Enforcement of this statute is rare, but it is common for sex during separation to affect negotiations and lawsuits.  A relatively amicable divorce proceeding can turn nasty very quickly if one spouse finds out that the other has already begun a sexual relationship with another person.  This can cause resentment and bitterness that may encourage the “left behind” spouse to be more difficult in negotiation and legal tactics.  While this law is rarely enforced, committing adultery does mean that you risk having a criminal record, which could impact your job, your custody case, and the judge’s perception of you.  While you are separated, it is important to conduct yourself in a manner that will not reflect poorly on you in the eyes of a judge whose decisions have significant impact on your future.