Category: Family Court

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 to Expect When a Lawsuit Has Been Filed In Your Domestic Case

justice_siemensfamilylawgroupBuncombe County is currently one of 13 judicial districts in North Carolina that has a dedicated Family Court system within its District Court division. The primary advantages to filing a legal action in a Family Court district is that the case is assigned to one judge who hears all matters related to that case, with the possible exception of emergency matters. This allows the judge to become familiar with all issues related to that particular family. The District Court judges that are assigned to Family Court received special training in family related legal matters. Additionally, the Family Court staff maintains a case management system that establishes and monitors time standards in the case from the time a lawsuit is filed until all matters in the case of been concluded. This ensures that the case remains on track and is concluded as expeditiously as possible.

There are state guidelines that mandate how the Family Court system operates. However, each judicial district has its own local rules that determine how cases filed in its district will be handled. A copy of the local Family Court rules for Buncombe County, entitled 28th Judicial District Family Court Domestic Rules, can be accessed by going to the North Carolina state court website at http://www.nccourts.org/Courts/CRS/Policies/LocalRules . State and local court forms may also be accessed through this website.

In North Carolina state courts, the party who initiates a legal action by filing a lawsuit is known as the “plaintiff.” The party who is being sued or who responds to the lawsuit is known as the “defendant.” The lawsuit itself is known as a “complaint.”

In North Carolina, you must be separated for one full year before a complaint can be filed for an absolute divorce. However, claims for child support, child custody, postseparation support, alimony, and equitable distribution should be resolved in a separation agreement or court order during the period of separation, or pending in an existing legal action before your divorce is finalized. Claims for postseparation support, alimony, and equitable distribution cannot be asserted after a judgment of divorce has been entered.

The significance of filing a lawsuit is that it brings your case before the court where it is subject to rules, procedures, and deadlines. If the parties cannot reach an agreement of the issues in dispute, then a judge can schedule a trial and make a decision for them.

From a procedural standpoint, when a complaint is filed with the court, a civil summons must also be issued by the clerk of court. A “domestic civil action cover sheet” form must be attached to the complaint. Depending on the legal issues raised in the complaint, additional documents may need to be attached to the complaint and filed with the court, including a “notice of judicial assignment” and/or an “affidavit of financial standing.” A Family Court Case manager must be contacted to complete the “notice of judicial assignment” form contemporaneously with the filing of the complaint.

After the civil summons has been issued and the complaint and related documents have been filed with the court, they must be properly served on the defendant. Proper methods of service include:

  • service by the Sheriff of the County where the defendant resides;
  • mailing by registered or certified mail, restricted delivery, return receipt requested;
  • depositing with a designated delivery service, properly addressed and delivered, and obtaining a delivery receipt which includes an electronic or facsimile receipt; and
  • defendant voluntarily accepting service by signing an acceptance of service form.

The defendant has 30 days from the date of service to file an answer or response to the allegations in the complaint. The defendant can file a motion for an extension of time with the Clerk of Superior Court in the county where the action was filed and receive an additional 30 days to file an answer. If Defendant’s answer includes counterclaims asserted against the plaintiff, the plaintiff has 30 days from the date of service to file a reply to the counterclaims, but plaintiff may request and receive an extension of time for an additional 30 days.

As an example, the plaintiff may file a complaint seeking child custody, child support, and equitable distribution, and the defendant may file an answer to the complaint that includes counterclaims seeking child custody, child support, postseparation support, alimony, attorney’s fees, and equitable distribution. The plaintiff would then need to file a reply to the counterclaims and serve defendant with the reply. A copy of all documents that are filed in Family Court cases must be promptly provided to the Family Court offices.

After the defendant has been properly served with the complaint and had an opportunity to file an answer, a hearing may be held on temporary issues, such as postseparation support.

The initial pleadings filed in the case (the complaint, answer and counterclaims, and reply) give each party notice of the legal claims and defenses being asserted by the other and provide the foundation for the parties to move into the next phase of the litigation which is typically the “discovery” phase. This allows each party an opportunity to request and obtain information and documents to support or defend their legal claims and investigate relevant issues.

Laws and legal procedures can be complicated and confusing, and add to the stress of divorce. The family law attorneys at Siemens Family Law Group are knowledgeable and experienced lawyers who represent clients in matrimonial and related matters, including divorce, child custody, child support, postseparation support, alimony, equitable distribution, and domestic violence. Our dedicated and focused family law attorneys can make a positive difference in the experience you have with the legal process and the outcome of your case. If you are considering separating from your spouse or are in need of legal representation in connection with a family law matter, contact our office to see how we can be of assistance to you.

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.

Should I Try to Settle with My Spouse or Go to Court and Let a Judge Decide?

justice_siemensfamilylawgroupOnce you have made formal arrangements to retain a divorce attorney, usually indicated by signing a fee agreement and paying any required retainers, your attorney will begin work on your legal matters. The legal claims related to divorce may include such matters as child custody, child support, postseparation support, alimony, and equitable distribution of marital property and debts. Depending on your circumstances, your attorney may contact your spouse’s attorney, or your spouse directly if he or she is not represented by an attorney, to determine whether or not some or all issues related to your separation and divorce may be settled without filing a lawsuit. Negotiating a settlement usually involves a series of offers and counter offers with both parties being willing to make certain compromises. If you and your spouse are able to reach an agreement regarding some or all issues related to your divorce, your agreement can be memorialized by entering into a valid written contract, commonly referred to as a separation agreement. Any issues which you and your spouse are unable to agree upon can be brought before the court for determination.

There are many advantages to entering into a separation agreement, or otherwise settling your matters outside of court, including those listed below.

  • Negotiating a settlement is almost always less expensive, less stressful, and less time-consuming than going to court.
  • You and your spouse can reach an agreement regarding financial matters and child related issues that best suits your needs based on your particular circumstances.
  • Reaching an agreement through informal negotiations or at mediation eliminates the uncertainty of going to court and letting a judge decide your case. If you go to court and let a judge decide, neither you nor your spouse will have any control over the outcome of the case.
  • A negotiated or mediated settlement fosters a spirit of cooperation which can help to reduce hostility and conflict. This may enable you and your spouse to preserve certain aspects of your relationship which can be especially important if you are the parents of a minor child.
  • A separation agreement provides a greater degree of privacy and it can remain private and confidential unless it is merged into a judgment of divorce. Legal documents filed in a divorce related case are a matter of public record.
  • You and your spouse can agree to things in a separation agreement or a private contract that a judge does not have the statutory authority to impose. For example, parties can agree that one or both of them will pay the college expenses for their adult child, that the noncustodial parent may claim the dependency exemption of the minor child for income tax purposes, or that an obligation to pay child support or alimony will be secured by a life insurance policy insuring the life of the supporting spouse or parent.

Although settling outside of court may be your preferred method of resolving your family related legal issues, there are a number of reasons your attorney may recommend that you file a lawsuit (known as a “complaint”), including the following:

  • the opposing party (your estranged spouse) is not negotiating in good faith, e.g. is making unreasonable demands, refusing to voluntarily provide pertinent information and documents, or not responding to settlement proposals;
  • to preserve the court’s jurisdiction (authority over your case);
  • if there has been domestic violence or there are concerns for your safety; or
  • if it is necessary to obtain a restraining order or an emergency child custody order.

Filing a lawsuit does not mean that your case will have to go to trial. In fact, the vast majority of family related legal matters in Buncombe County, North Carolina are settled outside of court. Both before and after your lawsuit has been filed, you and your attorney can continue to explore settlement possibilities through informal negotiations or by attending mediation.

Entering into a separation agreement has serious legal consequences that may impact your life for many years into the future, particularly as it may relate to paying or receiving child support or alimony, or the division of certain assets such as pension and retirement accounts. Therefore, it is imperative that you have an experienced and competent family law attorney representing you in negotiations, offering qualified legal guidance, and advocating on your behalf. Moreover, it is crucial that you fully understand the terms and conditions of any agreement or legal document that you are signing.

When you are facing the uncertainty of divorce, the family law attorneys at Siemens Family Law Group can help you understand your options, and legal rights and obligations. Whether your case is resolved through settlement negotiations or litigation, you can count on us to provide quality legal services that keeps your best interests at heart at all times. Our firm’s commitment to professionalism and client satisfaction has earned us an exceptional reputation as one of the preeminent family law firms in Asheville and the Western North Carolina area.

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.

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.

Jim’s NC Supreme Court Appearance

On April 16th of 2013, I had the privilege of arguing before the North Carolina Supreme Court in the case of Duncan v. Duncan.  The case has a long procedural history and I have previously blogged on the concept of interlocutory appeals.  The Supreme Court took up this procedural issue on April 16th, 2013.  No appellate court has yet reached the merits of the Duncan case, looking only at the question of whether the case is ripe for appeal.  It is hard to believe that a case that was filed in 2005, and which I have been engaged in since 2007, is still winding through the appellate courts.  Here is an article I wrote for the Family Forum newsletter, a publication of the Family Law Section of the North Carolina State Bar Association, addressing the Supreme Court’s ruling in Duncan v. Duncan, and new legislation permitting the appeal of individual claims as a family law case progresses through the trial court.

2013 is a year of change in the rules of appellate jurisdiction for Family Law Lawyers.  On June 13th of 2013, the Supreme Court, in Duncan v. Duncan, ruled that an unresolved attorney fee claim is not a substantive claim rendering an appeal of substantive issues interlocutory.  Duncan v. Duncan, 732 S.E.2d 390; 2012 N.C. App. LEXIS 1132 (N.C. Ct. App., 2012); hereinafter, Duncan 4.  And, on August 23rd, 2013, NCGS 50-19.1 became law, authorizing the maintenance of appeals of individual family law claims, notwithstanding pending claims in the trial court.

Beginning with the Supreme Court ruling in Duncan 4, Justice Newby characterized an unresolved attorney fee claim related to alimony as “collateral” to a final judgment and “not part of the substantive claims”.  Justice Newby’s opinion effectively reverses the Webb case, wherein the Court of Appeals characterized attorney fees in the context of alimony to be a “claim”, the disposition of which is necessary before an entire controversy is determined and an appeal ripe.  Webb v. Webb, 196 N.C.App. 770; 677 S.E.2d 462; 2009 N.C.App. Lexis 518, 2009.

Welcome Judge Dotson-Smith

Susan M. Dotson-Smith was sworn in as District Court Judge in the 28th Judicial District on Thursday, November 8th, 2012.  Judge Dotson-Smith has been assigned to Family Court and will assume the case load historically carried by the Honorable Rebecca B. Knight, and for a temporary period, by the Honorable Fritz Y. Mercer, Jr.

The swearing in was remarkably well attended.  Among the participants in the oath of office ceremony were Chief District Court Judge Calvin Hill, Resident Superior Court Judge Alan Thornburg, N.C. Court of Appeals Judge Cheri Beasly and N.C. Supreme Court Chief Justice Sarah Parker and Secretary of State Elaine Marshall.  This attendance connotes the importance of the position and the fact that Judge Dotson-Smith will touch the lives of many in Buncombe County.

We at the Siemens Family Law Group welcome Judge Dotson-Smith’s presiding in the Buncombe County Family Court and look forward to advocating in her courtroom.

Buncombe County Family Court Changes

The Buncombe County Family Court and Offices have moved to the third floor of the Courthouse in reasonably renovated space.  The Family Court offices are accessible, functional and seem comfortable for the Family Court case managers.  There are 2 new courtrooms on this floor which are equally comfortable and functional.

The Family Court bench has changed as well.  The Honorable Ward D. Scott, Andrea F. Dray and Rebecca B. Knight now preside exclusively in Family Court.  Judge Julie M. Kepple, who began her career as a District Court Judge in Family Court, is now handling criminal matters primarily.

Conference space for lawyers and clients remains inadequate on the 3rd floor in our view.  There are also no wireless signals available in the Buncombe County courthouse.  We typically solve these deficiencies by meeting with clients on the 10th floor of the courthouse in library conference rooms.  We bring our PCs and portable printer in order to deliver services that are not otherwise readily available in the building.

We continue to support the efforts of the Family Court program and believe it is the right paradigm.  We appreciate the hard work of the Family Court case managers and staff.  And we appreciate the dedication, competence and patience demonstrated by the Family Court bench and clerks on a daily basis.

Family Court in Asheville 2011

Happy New Year!  For divorce lawyers practicing family law in Asheville, 2011 promises to be an exciting year.  With the retirement of Chief District Court Judge Gary Cash, and the metriculation of the Honorable Marvin P. Pope Jr. to the Superior Court bench, two vacancies have occurred in the Buncombe County Family Court.

The Honorable Julie M.  Kepple was sworn in on New Years Day and has taken the seat vacated by Judge Cash.  An appointment is anticipated by the Governor’s office this month to fill the vacancy left by Judge Pope.  Presently, The Honorable Dennis J. Redwing, from Gastonia, is sitting in Judge Pope’s seat, pending the Governor’s appointment.

We at Siemens Law Office are confident that the same consistent, credible approach to advocacy, well grounded in the law and the facts of each case, which has served our clients  in the past, will continue to serve our clients well in 2011.  We welcome the new jurists and wish them well.