Child Custody and Visitation
What is in the best interest of the kids?
There is no set custody schedule. Each family and child is different. Our attorneys understand this and we do not offer "cookie cutter" advice about the best parenting plan. We want to know about your child's strengths and challenges, his or her school, friends, extended family, etc. We work as a team with you to determine what schedule is in your child's best interest.
Of course, it takes both parents to agree on a parenting plan. When parents are unable to agree, sometimes, going to court is unavoidable. When that happens, the judge has the authority to determine what is in your child's best interest for a custodial schedule, regardless of what you may want.
What are the types of custody?
There are two types of custody. The first is physical custody. This defines where, with whom and when the child will reside with each party. Primary physical custody is awarded to the parent with whom the child lives the majority of the time. The other parent would have custody in the form of visitation. The court may also award joint physical custody. Joint physical custody works best when both parents can work together and communicate in a positive and productive manner.
Legal custody determines which parent has the authority to make major decisions for the child such as medical and educational decisions. Joint legal custody is common and is most productive when both parents are involved in the child's life and are concerned about the best interests of the child. If this is not the case, one parent may be awarded primary legal custody and have the authority to make major decisions for the child.
What if we can't agree on a custody schedule?
If parents are unable to agree on a custodial schedule, one party may file a complaint for custody and seek the court's assistance in determining a custodial schedule. During a custody hearing or trial, both parties appear before a district court judge. They have the opportunity to testify, present witnesses, exhibits and other evidence to support what they believe is the best custody schedule for their child. At the conclusion of the hearing or trial, the judge issues an order setting out the specific custodial schedule along with other provisions the court believes is in the best interest of the child.
What happens if my ex fails to follow the child custody and visitation order?
Failing to follow custody or visitation orders is very serious. A person who does not follow these orders for any reason could be found in contempt of court, which could lead to fines, jail time, or serious consequences to your child custody rights. It is important to note that North Carolina considers child custody and child support to be entirely separate court orders, so it is not acceptable to refuse visitation to your ex for failing to pay child support, or to refuse to pay child support in response to a child custody dispute.
Child Support and Alimony
What are the child support guidelines in North Carolina?
North Carolina's child support guidelines are determined by the gross income of both parents per month, the amount of health, dental and/or vision insurance that is paid for the child per month, the amount of work-related child care that each parent pays for per month, and other extraordinary expenses. Once these figures are entered on the child support worksheet, the child support calculator will determine the amount of monthly child support to be paid.
Accompanying North Carolina's child support guidelines, there are three different child support worksheets. Worksheet A is used when one parent has primary custody and the other has less than 123 overnights a year with the child. Worksheet B is used when parents have joint physical custody and when one parent has more than 123 overnights a year with the child. Worksheet C is used when the parents have "split custody," which means that one child lives primarily with one parent and another child lives primarily with the other parent.
How long does child support last?
Child support obligations continue until the child turns 18 years old. However, if a child is 18 years of age, still in high school and making progress toward graduating, the court can order child support to continue until the child graduates from high school or turns 20 years old, whichever comes first.
How long does spousal support or alimony last?
The purpose of post-separation support is to provide temporary financial support to one spouse after the parties separate until a permanent award for alimony is entered or denied.
Alimony is a more permanent type of financial support for a dependent spouse. However, the term "permanent" can be deceiving. It does not mean, generally, that a dependent spouse will be awarded alimony for the rest of his or her life; rather, support is for a definite number of months or years. Judges have great discretion in determining the length of time and amount of alimony. Additionally, marital fault, by either or both parties, can have a substantial impact on an award of alimony.
What happens if my ex fails to follow the divorce decree or court order?
Failing to follow custody or support orders or separation agreements is a serious offense. A person who does not follow a separation agreement can be found by a judge to be in breach of contract, and the court can order the individual to follow the previously agreed-upon arrangements and may even order the individual to pay the other party's attorney fees. Individuals who fail to follow a court order can be found in contempt of court, which means they can face jail time, fines and other serious consequences.
If you are in danger due to family violence, call 911 immediately for help.
This domestic violence FAQ is meant to help you understand the basic concepts of how domestic and family abuse are handled in North Carolina family law cases. If you are in a crisis situation that is not immediately dangerous, InterAct Family Safety & Empowerment Center operates a toll free, 24-hour domestic violence crisis hotline at 866-291-0855.
What is a domestic violence protective order (DVPO)?
Domestic violence protective orders can be filed in civil court to provide immediate protection if you've been physically or mentally abused, if you're in imminent fear that the other party will harm you, or if the other party's actions rise to the level of stalking. We help individuals file DVPOs, and we can help you take immediate action if a DVPO was filed against you.
An array of issues may be addressed in the DVPO hearing, which could affect other court proceedings, including:
- Temporary child custody
- Temporary spousal or child support
- Temporary property distribution, such as possession of your home or car
What happens if I get served with a DVPO?
If you are served with a domestic violence protective order, call your local police's non-emergency number and set a time to get your clothes, toiletries, personal effects and tools of your trade (equipment you use for your job).
You should also contact an attorney as soon as possible to discuss your situation and prepare for the 10-day return hearing required by the court.
Finally, preserve any evidence about the incident such as taking photos of scratches, red marks, bruises, torn clothing and property damage. Also take screen shots of text messages and preserve emails. Do not contact the plaintiff under any circumstances, even through a third party, because you can be immediately arrested for violating an order of the court.
What qualifies as domestic violence?
Domestic violence can take more than one form. Domestic violence can be in the form of a physical attack as well as repeated verbal abuse, stalking or harassment if it causes serious emotional distress for you or a member of your household.
How does North Carolina approach domestic violence?
Domestic violence is a serious and dangerous situation that families face. The North Carolina courts and legislature take an aggressive approach toward addressing domestic violence, with a primary concern being the safety of the victim. Additionally, homes involved in domestic violence situations may have long-lasting effects on children. Children who experience repeated exposure to domestic violence situations may learn this behavior and are at a higher risk of developing the same pattern of behavior into adulthood, and repeating it in the next generation.
Who can I reach out to for help regarding domestic violence?
An attorney from Triangle Divorce Lawyers would be happy to help you obtain a DVPO against someone who is abusing you or your children — or to defend you if a DVPO is being wrongfully sought against you.
For low-income or additional assistance, InterAct and Legal Aid are two well-respected resources for domestic violence victims and their families. More information for each program can be found through our office, your local courthouse, www.nccourts.org.
24-hour domestic violence crisis hotline: 919-828-7740 or 866-291-08551012 Oberlin Road Raleigh, NC 27605 Main office number: 919-828-7501
Legal Aid of North Carolina224 South Dawson StreetRaleigh, NC 27601
Separation, Pre-Nuptial, and Post-Nuptial Agreements
What are the benefits of separation agreements and pre/post-nuptial agreements?
Whether you are concerned about protecting an estate you worked hard to build or want to ensure your children are provided for, there can be many benefits to crafting a separation agreement, or a prenup or postnup. By working with an experienced lawyer to draft and review agreements, you can remain in control of what happens with your assets or your children. If you have to go to court to resolve asset division or child custody issues, you lose the ability to control every step of the process.
How much does a divorce or separation cost in North Carolina?
There is no set cost when it comes to separation and divorce. It depends on how contentious things turn out to be, and it depends on whether or not you and your spouse can agree on things like how to separate your property or where your children will live. In other words, you can settle all your issues through a separation agreement and you won't have to go to court. This can be a less expensive solution for you.
However, if you can't come to an agreement and have to go to court, you need to think about not only the financial cost but also the personal cost, stress and time involved. That's where we come in. Divorce is complex, and that's why there isn't a set price when it comes to having an attorney represent you.
Separating and getting divorced isn't easy. We want to be up front with you and let you know that even so-called "flat-fee" divorces may have hidden costs.
Who can adopt a child?
Anyone between the ages of 21 and 65 may adopt a child in North Carolina. A single adult is eligible to adopt, so long as they are found to be fit and successfully complete a Pre-placement Assessment. If the prospective adoptive parent is unmarried, however, no other individual may join in the petition for adoption. A married couple may jointly petition the court to adopt a child, but only after being married for at least one year.
How much does it cost to adopt a child?
The cost of adoption varies. For domestic adoptions, the total cost tends to range from $20,000 to $45,000. However, financial assistance may be available. For a couple with combined annual incomes of less than $180,000, the federal adoption credit may be as high as $13,000. Many employers also offer adoption assistance ranging from $2,000 to $5,000. Some participating employers include SAS, CISCO, IBM and thee United States Department of Defense.
How does a prospective adoptive family find a child to adopt?
Families have multiple resources to choose from when looking to adopt. One option is adoption through the North Carolina foster system. These children are generally children who were neglected or abused by their birth parents and the rights of those parents were terminated as a result. There are often financial incentives to assist with these adoptions and it generally takes less time to adopt. Other families may locate a child to adopt through advertisements or personal connections, although it can be difficult to locate a child in this way and it may open the prospective adoptive parents to scams. If pursuing this route, the identification and assistance of an experienced adoption attorney is imperative. A third option is an adoption agency.
Many adoption agencies actively recruit birth mothers and allow the birth mother to select an adoptive family from among the prospective adoptive families using their services. Other agencies may focus on assisting families with the adoption of children from other countries. Either way, wait times and expenses for these agencies vary.
May a child be placed in the home of the prospective adoptive parents prior to the completion of the actual court proceedings?
Yes. So long as a Preplacement Assessment has been successfully completed and the court finds it is in the child's best interests, a child may live with his or her prospective adoptive parents prior to the completion of the court process.
What type of information is provided during a Pre-placement Assessment?
In addition to interviews with the prospective adoptive family and a tour of the home, prospective adoptive parents are generally required to produce the following documents:
- Local County certified criminal background reports for all adults age 18 and older living in the home
- Responsible Individuals Listing form (one for each adoptive parent - DSS Form 5268)
- Physician's report for each member of the adoptive family living in the home or any other persons living in the home
- Copy of your most recent pay stubs or a statement from your employer verifying employment and income
- Copy of the first two pages of the most recent Federal 1040 income tax return
- Three notarized letters of reference
- Certified copy of any marriage certificate
- Photocopy of any divorce decrees
- Photocopies of birth certificates for adoptive parents and children in the home
- Photocopy of the final decree of adoption for any adopted children
- Brief, written statement from any adult children no longer living in the home concerning their feelings about the upcoming adoption
- Copy of the decree from any past finalized adoptions.
Is a Preplacement Assessment required for an international adoption?
Yes. In fact, the Pre-placement Assessment for international adoption may be a more strenuous process than for an adoption taking place in North Carolina alone. Standards for adoption and Pre-placement Assessments vary from state to state and country to country. If a family lives in North Carolina and adopts a child from North Carolina, the adoption will solely be governed by the laws and standards of North Carolina. However, if a child is adopted from a foreign country, the Preplacement Assessment must not only meet the requirements of North Carolina, but also United States Immigration standards and the standards of the country from which the child is being adopted.
Is it difficult for a stepparent to adopt the children of their spouse?
The adoption of a spouse's child or children is called a Stepparent Adoption and the difficulty of the process depends on the willingness of the non-spouse biological parent. If the non-spouse biological parent consents to the adoption, it is a relatively simple process. A Preplacement Assessment likely be required prior to filing the Petition and formal consent must be obtained from the biological parent who is giving up his or her rights. If the non-spouse biological parent is not in agreement, however, the rights of that parent must be terminated in a separate termination of parental rights proceeding and this necessity will certainly increase the time and expenses associated with the process. Regardless of whether the non-spouse biological parent consents, it should be noted a child over the age of 12 must to give his or her consent to the adoption.
Can prospective adoptive parents give a birth mother money for the adoption?
While adoptive parents cannot "buy" a baby, they can pay reasonable and actual fees and expenses to the birth mother or on her behalf for the following:
- Services of an agency in connection with the adoption
- Expenses associated with the pregnancy and birth including but not limited to medical, hospital, nursing, pharmaceutical, and traveling expenses associated with the same
- Counseling services conducted by qualified practitioners and that are directly related to the adoption
- The birth mother's ordinary living expenses during the pregnancy and for up to six weeks after the birth of the child
- Costs associated with gathering background information
- Legal expenses associated with the adoption including but not limited to attorney fees, court costs, and administrative expenses
- Costs associated with the preparation of the home study and report to the Court.
Can a birth mother change her mind about the adoption?
Yes, she may change her mind at any time prior to the end of the revocation period. The revocation period is seven day period which begins to run when the birth mother signs a legal document consenting to the adoption of her child. At any time prior to the expiration of the revocation period, a birth mother may change her mind and revoke her consent.
What is an open adoption?
An open adoption is an adoption in which one or both birth parents and the adoptive parents agree to exchange identifying information. The parties may also agree the birth parents will receive pictures or information about the child at proscribed times or that the birth parents will have the opportunity to meet or communicate with the child. As the extent to which an adoption is open is based purely on the agreement of the parties, the variations are endless. However, unless the parties agree otherwise, the adoptive parents are under no obligation to provide the birth parents with information or communication with the child.
LGBTQ Family Law Matters
Who can marry in North Carolina?
Unmarried adults over the age of 18 can marry in North Carolina regardless of the gender of the couple. This is true for same-sex couples, heterosexual couples and couples that include transgender individuals.
Who can divorce in North Carolina?
A married couple, regardless of gender, who have been separated for at least one full calendar year. In North Carolina, separation occurs when the spouses live in separate residences and at least one of the spouses intends the separation will be permanent.
Is the divorce process the same for same-sex married couples as for heterosexual married couples in North Carolina?
There is no reason to think the process should be different than the divorce process for heterosexual married couples.
Can a member of the LGBT community adopt a child as a single person in North Carolina?
Any single adult between the ages of 21 and 65 may adopt a child in North Carolina so long as that adult is found to be fit and successfully completes a pre-placement assessment. An adult's sexual orientation or gender identification should have no bearing on their fitness to parent a child. A single adult, again regardless of sexual orientation or gender identification, can adopt regardless of whether they are living with a partner.
Can same-sex couples adopt a child together?
Yes, so long as the couple is married.
Can a same-sex spouse adopt the biological or adopted child of his or her spouse?
Yes, so long as the non-spouse biological parent or non-spouse adoptive parent (if one exists) consents to the adoption or the rights of that parent are terminated by the court.
Do the attorneys at Triangle Divorce Lawyers represent same-sex couples?
If you are facing a family law issue, such as divorce, separation, custody or child support, you deserve to be represented by an attorney who will respect your family and treat you with compassion. The attorneys at Triangle Divorce Lawyers in Raleigh take pride in serving the lesbian, gay, bisexual and transgender ("LGBT") community.