Family Law

Child Support
Information provided by the NCATL Education Foundation

When a child’s parents separate, decisions regarding the care and support of the child must be made. If the parents are not able to resolve the issues of custody or child support, a judge can be asked to decide. North Carolina law authorizes its district court judges to protect children until they reach majority (usually age 18) by determining what is best for the child when parents cannot agree or when either parent submits the issue to a court. Generally, the child and the parents will be better served by putting the child’s welfare first and by agreeing between themselves.
1. THE AMOUNT OF CHILD SUPPORT
  Both parents have a duty to support his or her children. North Carolina has adopted child support guidelines that apply to all cases and are based upon the income of both parents, the type of custodial arrangement that exists, and factors such as day care and health insurance costs. Forms for determining the amount of support can be obtained from the Administrative Office of the Courts.
2. VISIATION/CHILD SUPPORT ISSUES
  Q: Will the full amount of child support be reduced if the child spends a relatively long period of visitation (three or four weeks) with the supporting parent?
  A: A separation agreement may allow credit, reducing the child support under such circumstances, but all North Carolina courts use guidelines that take into account extended time with the non-custodial parent.
3. RELATIONSHIP BETWEEN CHILD SUPPORT AND VISITATION?
  Some parents with custody refuse to allow visitation when support is not paid, or a parent will withhold child support when not able to see a child. Under North Carolina law, visitation and child support are not related; neither parent has the right to withhold support or visitation. Instead, the aggrieved parent must seek help from the court.
Child Custody
Information provided by the NCATL Education Foundation

When a child’s parents separate, decisions regarding the care and support of the child must be made. If the parents are not able to resolve the issues of custody or child support, a judge can be asked to decide. North Carolina law authorizes its district court judges to protect children until they reach majority (usually age 18) by determining what is best for the child when parents cannot agree or when either parent submits the issue to a court. Generally, the child and the parents will be better served by putting the child’s welfare first and by agreeing between themselves.
1. Negotiation or Litigation
  In an effort to avoid litigation, many counties offer or mandate state-supported mediation to facilitate decision-making by the parents. However, when parents either cannot or will not agree between themselves, the legal system authorizes a district court judge to decide who should have custody, how much visitation the non-custodial parent will have, and how much child support the non-custodial parent will pay.
  Litigation is expensive, with both parties usually represented by an attorney. Litigation means the parents give up control over decision-making that has an enormous impact on their child and on them. No judge can know as much about a child’s needs as the parents do. And since litigation usually ends with both parties feeling bitter and unhappy about the results, use of the courts to resolve issues of custody and support should be a last resort – when there is no other way. In addition, litigation is a very expensive way to resolve differences.
2. Custody and Negotiation
  Until the parents execute a written separation agreement with provisions for custody or a court grants custody to one parent, both parents have equal “rights” regarding their child. This does not, however, give one parent a right to take the child away from the other. Usually agreements, as well as court-ordered custody, place the child primarily with one parent and give the other parent time with the child – at least two weekends each month, alternating major holidays, and extended time in the summer.
3. Joint Custody
  Even though agreements frequently use the term “joint custody,” orders that are not entered by consent of both parties rarely do. When a judge must decide the issue of custody, it is already obvious the two parties cannot work together and cooperatively resolve matters concerning their child. Since joint custody essentially means little more than both parties are “fit” to parent and can and will cooperate in making major decisions affecting their child, it is rare that a judge will award joint custody to two parties who have been unable to resolve the most basic question – where the child will live.
  When separated parents agree upon joint custody or the court decides that the parents should be granted joint legal custody of a child, it does not mean that each parent has physical custody of the child for half of the child’s time. It means that the parents should continue to cooperate and should work together to make the major decisions for the child.
  Joint custody can, of course, be beneficial for the child if the parents are interested in and capable of working together for the child’s best interests and welfare. On the other hand, it can cause more problems if one parent is bent on obstructing or undermining the other parent or the child.
4. Agreement v. Order
  Custody, whether sole custody or joint custody, is valid if it is part of a written and properly executed agreement or if part of a court order. Consent orders may be entered by agreement, i.e., without a trial. Even if a lawsuit has been filed, the two parties may agree and ask the court to approve their agreement. The agreement almost always will be approved; the result is called a consent order, which can be enforced by the court.
  
  The form of your custody determination—strictly agreement or order—may make some difference. Each is enforced differently and treated differently if a change in custody or visitation needs to be made in the future. You should consult an attorney about what is best for you and your child.
5. Custody Considerations
  During a custody trial, the judge considers certain facts and issues to determine the best interests and welfare of the child, the guiding principle in deciding who is awarded legal custody. These are:
  - What is the child’s age?
  - Who assumed primary responsibility in caring for the child during the marriage?
  - Who will feed, bathe, clothe, and teach the child during the week?
  - What is the work schedule of each parent who works outside the home?
  - What is the physical, emotional, and parenting ability of each parent?
  - With whom is the child bonded psychologically?
  - Is either parent trying to prevent the child from continuing a relationship with the other parent?
  - Is either parent trying to use the child just to hurt the other parent?
  - Is either parent really unfit, unwilling, or unable to properly and appropriately raise the child?
  There is no legal presumption for either the mother or the father as the custodial parent.
6. Conclusion
  Your child will benefit if matters of custody, visitation, and support can be determined amicably. When that is not possible, either parent or anyone seeking custody may petition the court to decide. Custody, visitation, and support issues are not concluded until the child reaches majority. An agreement or court order may be changed if the circumstances warrant. For custody and visitation, majority occurs when the child reaches his or her 18th birthday. For child support, it may continue until the child graduates from high school or reaches his or her 20th birthday, whichever occurs first. If the support has been agreed to by the parents, it is not uncommon to make provisions for financial assistance for children who may go on to college.
SEPARATION/DIVORCE
1. Separation Agreements
  No law requires a couple to prepare and sign paperwork (such as a separation agreement) when they separate.
  
  No separation document is needed in divorce court to prove that the couple has been separated. However, a husband and wife should seriously consider a separation agreement if they decide to live apart.
  
  Oral promises at the time of separation (concerning the rights and duties of the couple) are hard to prove and impossible to enforce.
  
  Subjects such as child custody and support, property division, spousal support (alimony), possession of the marital residence, and tax matters should be written down and agreed upon (if agreement is possible) in a formal separation agreement prepared by a lawyer. This agreement is a contract between the husband and wife in which they set out their responsibilities for these difficult issues.
  
  A separation agreement can be enforced by court order if one party breaks a promise in it. No one can force the husband or wife to sign such an agreement, however; and it is not contempt of court to violate a separation agreement that is not part of a court order. A lawyer should always be retained to prepare such an agreement and supervise its signing by the couple (or to review an agreement prepared by the other spouse’s attorney).
2. Spousal Support and Alimony
  Post-separation support and alimony can be granted by the court when there is a need for spousal support. It is essential that the party claiming alimony actually be dependent on the other for support or substantially in need of such support. The other party must be the supporting spouse; that is, the one able to pay such support.
  
  A hearing on post-separation support is held before a judge, and the support lasts only until an alimony hearing or until it is otherwise terminated. There are two aspects to an alimony hearing:
  1. A judge decides the issue of whether one party is the “supporting spouse” and one is the “dependent spouse.” Notice that there is no preference given by law to either men or women, and both husbands and wives may claim alimony.
  2. If the above issue is resolved favorably for the spouse claiming alimony, the final issue is a determination of how much alimony should be paid. This depends on the income and estates of the husband and wife, each one’s reasonable needs, and the accustomed standard of living of the dependent spouse. What factors will the judge look at to determine post separation support?
  At a hearing regarding post-separation support, the judge shall consider marital misconduct by the parties in deciding whether to award support. If the dependant spouse committed adultery before the couple separated and the other spouse can prove it, the dependant spouse is not entitled to support, even if he or she is eligible for it. However, if the supporting spouse has committed adultery, he or she must pay support. If both parties have been adulterous, support is at the discretion of the judge
3. The Divorce
  After the couple has been living apart for more than one year with the intention of living apart permanently, and either has lived in this state for the past six months, either one may file for divorce, serving a copy of the “complaint” on the other spouse by certified mail (return receipt requested) or through the county sheriff. The judge will grant the divorce if the other party fails to answer the complaint within 30 days after being served, if he or she waives the right to service and answer, or if the other party files an answer that does not deny the separation of over one year.
4. Property Division
  Before, during, or after marriage the parties may by written agreement provide for distribution of marital property in a manner deemed by them to be equitable. The agreement shall be binding on the parties.
  
  Q: What if the action for divorce has already been filed?
  
  A: Either party may apply to the court for a division of marital property called “equitable distribution.” Generally, all items of property acquired by the husband and wife during their marriage are considered marital property and are divided, including: real estate, cars, bank accounts, furniture, ownership interests in a business or professional practice, pension rights, and retirement plans, including military pensions.
  
  The law presumes that the marital property should be split evenly between the parties on the net value of each item. However, under some circumstances, the court may award a larger share of the property to one spouse. For instance, a spouse may be awarded the house and car if she or he has custody of the minor children and needs this for their care.
  
  DSS Matters : Including (Abuse/Neglect/Dependency Issues; Termination of Parental Rights; Responsible Individuals List Appeals)
  
  Our Firm handles matters pertaining to your child and their involvement with the Department of Social Services. If you are being investigated or a Petition has been filed against you, please contact us to discuss your rights.

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