Category: Buncombe County

What You Should Know about Child Custody in North Carolina

North Carolina courts recognize two forms of child custody: “physical custody” and “legal custody.” Physical custody refers to the right of a parent (or guardian) to have actual physical custody of the child. Legal custody refers generally to the right of a parent (or guardian) to make important decisions on behalf of a child, such as those pertaining to the child’s health, education, discipline, and religious or spiritual training.

Child custody can be agreed to between the parties, or ordered by a court. When a child’s parents do not live together, it is recommended that they have a valid written agreement or court order setting forth the terms of their child custody arrangement.

Possible options for child custody arrangements between parents include the following:

  • the parents share both legal and physical custody of the child;
  • one parent has sole legal custody and both parents share physical custody on an equal or nearly equal basis;
  • the parents share joint legal custody, but one parent has primary physical custody and the other parent has secondary physical custody;
  • one parent has both sole legal and physical custody of the child while the other parent has visitation privileges (which may include supervised visitation); or
  • one parent has both sole legal and physical custody, and the other parent does not have any visitation privileges with the child. It should be noted, however, that only in rare or highly unusual circumstances, such as where there is child abuse or child endangerment, would a judge deny a parent visitation with his or her child.

When parents cannot agree on child custody, either party can initiate legal action requesting that child custody be established (or modified) by a court with jurisdiction. Policies in North Carolina encourage parties to settle child custody disputes outside of court so the parties usually must participate in mediation before the court will schedule a hearing on the issue of child custody.

In Buncombe County, where there is a dedicated Family Court, the local form 1 entitled “Notice of Judicial Assignment” must be submitted to a Family Court case manager at the time that that a complaint or motion involving contested child custody is filed with the court, together with local form 12 that includes an “Order to Attend Parent Education/Mediation Orientation & Mediation” and “Referral for Custody Mediation.” The Family Court case manager will complete the required local forms by indicating the judge assigned to the case, setting dates for each party to attend a mandatory Parent Education class and Mediation Orientation, and scheduling a status conference or hearing on any preliminary matters. A copy of the completed local forms along with all other documents filed with the court must be delivered to Family Court and properly served on the opposing party. Buncombe County’s local rules and forms can be found on the web at http://www.nccourts.org.   Select “Buncombe County” from the drop-down menu and then click on the link for “Local Rules.”

Mediation of a contested child custody matter is a mandatory program under North Carolina state law. The requirement to attend mediation may be waived by a judge in certain circumstances, such as if a party lives a long distance from where the custody action has been filed.

When the parties attend custody mediation through the court’s mediation program, a mediator, who is a neutral third party with experience in conflict resolution, will work with the parties to attempt to help them reach an agreement regarding child custody and parenting issues. If the parties are able to resolve their custody dispute at mediation, the parties will enter into a written agreement known as a “Parenting Agreement” that details the terms of their settlement. The Parenting Agreement may then be submitted to the judge for approval, incorporated into a court order, and enforced in the same manner as a court order.

The custody mediator available through the court system is limited to working with the parties to resolve disagreements regarding child custody and/or visitation matters. There is no charge to either party for participating in the mandatory custody mediation program. Typically the parties do not have their lawyers present when they participate in the custody mediation program. However, it is strongly recommended that both parties consult with an attorney prior to the custody mediation to ensure that they understand their rights, options, and responsibilities.

The parties can agree to use the services of a private mediator if they are willing to pay for the mediator’s services. The advantage of using a private mediator is that the mediator is not limited to working with the parties to resolve child custody. The private mediator can work with the parties to resolve other issues that may be in dispute, such as child support, post-separation support, alimony, and equitable distribution of marital property and debts. When the parties agree to use a private mediator to mediate disputes that include these important family financial matters, it is customary for each party to have their attorney present to offer guidance, explore options, and advise of the pros and cons of settlement possibilities.

If the parties are unable to resolve their custody dispute through mediation, then a hearing or trial can be scheduled so that a judge can make a decision. When adjudicating child custody matters, judges are guided by the legal standard of what is in “the best interests of the child.” This standard, however, can be very subjective as judges have broad discretion in determining what constitutes the best interests of the child. This also underscores the importance of being represented by a reputable family law attorney who can present crucial evidence to the court on your behalf.

The family law attorneys at Siemens Family Law Group understand that child custody disputes can be a difficult and emotional process for families. If you are pursuing or defending a claim for child custody or visitation, we can explain your options and make recommendations based on your unique circumstances. Our dedicated and experienced attorneys are skilled negotiators and seasoned litigators. We focus our practice exclusively on family law matters, including child custody, child support, spousal support, and division of marital property and debts so you can be confident we are knowledgeable and prepared to address other claims at issue in your case. Whether you need assistance in negotiating and preparing a written separation or custody agreement, or are involved in a contentious divorce or custody battle, you can count on the attorneys at Siemens Family Law Group to provide you with exceptional legal services.

This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.

What You Should Know About Child Support in North Carolina

child supportLike most states, North Carolina uses child support guidelines to help simplify the process of determining child support. North Carolina’s guidelines are based on an income shares model, which is predicated on the concept that the child should receive the same proportion of parental income that he/she would receive if the parents lived together. The North Carolina Child Support Guidelines currently in effect provide a formula for determining the presumptive child support obligation for parents whose combined gross income is $300,000 per year ($25,000 per month) or less. The child support guidelines are reviewed and updated at least once every four years to ensure they result in reasonable child support awards.

The guidelines are designed to work in conjunction with three different worksheets that accompany the guidelines. One of these three worksheets must be used when calculating support under the guidelines. The appropriate worksheet will depend on the parties’ child custody arrangement.

Worksheet A should be used when a parent has sole or primary physical custody (meaning one parent has the child/children for 243 or more nights of the year); Worksheet B should be used when the parents share child custody (each parent has the child/children for at least 123 nights per year); and Worksheet C should be used when there are two or more children and the parents split primary custody of the children. The worksheets allow other variables to be factored into the calculation of child support, including child care costs paid by a parent due to employment or job-search, health insurance paid by a parent for the child, and either parent’s responsibility for the support of any other children.

Most child support matters fall within the scope of the child support guidelines. However, there are exceptions. When the parties’ combined income exceeds $300,000 per year, the child support guidelines do not apply, and child support must be determined on an individual case basis. In these cases, unless the parties reach an agreement, the court must conduct a hearing and set child support in such amount to meet the reasonable needs of the child for health, education and maintenance, with due regard given to the estates, earnings and conditions of the parties, the accustomed standard of living of the child and the parties, and the other facts and circumstances of the particular case.

Even when the parties’ combined gross income falls within the guidelines, special circumstances may exist that provide a basis for a party to seek, or a court to determine, that there should be a deviation from the child support guidelines. Some such circumstances include: when a child has special needs and the amount of support calculated using the guidelines would not meet the needs of the child; when a parent is paying 100% of the child support obligation and 100% of the child’s health insurance premium; or, when a parent is paying child support for two or more families pursuant to the terms of two or more separation agreements, voluntary support agreements, or court orders.

Court hearings to determine child support can be lengthy proceedings that may require extensive evidence to be presented regarding incomes, income earning ability, expenses, standard of living, and other relevant factors. However, child support does not have to be set by the court. Regardless of incomes or other factors, the parties have the option of reaching an agreement on child support and settling the matter outside of court. Whether your matter is settled amicably or requires a contested court hearing, it is recommended that you retain an experienced and qualified family law attorney to represent you throughout your child support matter. Being represented by counsel can ensure that your legal and financial interests are protected during negotiations and beyond, and that child support is set in an amount that is fair to both parties and the child.

The family law attorneys at Siemens Family Law Group provide representation in a wide array of divorce and family related legal matters, including child support. If you need assistance in making an initial determination of child support, or would like to seek an increase or decrease in an existing child support obligation, our experienced and dedicated attorneys can help. We are committed to providing compassionate guidance and effective advocacy that has earned us a reputation as one of Asheville’s premier family law firms.

This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.

Mediation Center Brings Access to Justice for All

Mediation is a great tool for resolving disputes.  Many of our cases resolve in mediation, where complex issues can be resolved creatively in a calm environment.  The Buncombe County Mediation Center provides that tool for dispute resolution to the community at greatly reduced rates.  We support the Buncombe County Mediation Center, which helps bring access to justice for all.

Child Custody and Shared Parenting

child custody_divorce_siemensfamilylawgroupI used this article, Social Science and Parenting Plans for Young Children: A Consensus Report, successfully for a father in a recent child custody case.  The article is a consensus report on the merits of shared parenting.  There is an increasing body of literature – social science – on the merits of shared parenting.  This article represents the best distillation of the science on the subject that I have been able to find.  The conclusions begin on page 59, for anyone who wants to skip to the bottom line.  Every case is different, and I explore the facts of each of my cases to determine whether there is a reason to consider something other than a shared parenting relationship.  Locally, I think that is the majority approach, among my colleagues, and generally among the three judges in our Buncombe County Family Court.  Recently, I hired a local expert to read the conclusions of this article into the record of proceedings to reinforce for the Court what I believe to be the majority approach to child custody.  Whether you are a lawyer, a judge or a litigant, the time has come to think carefully about the emerging social science of child custody.  Ultimately, child custody cases are about the child’s developmental experience, which needs to include mom and dad, in equal proportion, absent unusual circumstances.

Buncombe Struggles with Income Mobility

asheville_siemensfamilylawgroupIn a recently published Harvard study on economic mobility in the United States, counties across the U.S. are ranked from best to worst.  Buncombe County comes in at the bottom, ranking 2,386 out of 2,478.  Boys and girls growing up in low-income households in Buncombe County will earn on average 13.1% less at age 26 than their low-income peers nationwide.  The impact is greater for boys, with an 18.6% loss in income, than for girls, at a 6.8% loss.

A New York Times infographic, The Best and Worst Places to Grow Up: How Your Area Compares, illustrates the projection that today’s low-income children in Buncombe County will make $3,420 less at age 26 than their counterparts across the U.S.

The growth we see in downtown Asheville makes it easy to forget that life for many young people in our community is hard – and getting harder.  This study, 16 years in the making, helps explain some of the harder things I have seen at the Courthouse in 20 plus years of law practice.  Policymakers should consider this study as the City and County continue to grow and develop.  It’s a matter of social justice that we can’t afford to ignore.

The study, The Impacts of Neighborhoods on Intergenerational Mobility, is part of The Equality of Opportunity Project, and you can find the story from the Asheville Citizen-Times here: Study finds little path from poverty in Buncombe County.