Children

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Child Custody

The statutes state that any person claiming the right to custody of a minor child may institute an action or proceeding for custody. (There is a notable exception for rape victims so that their perpetrator cannot file for custody of a child conceived out of rape). This means that not only parents but anyone with a custodial interest in a child may file a claim for custody. While a biological parent has natural, constitutional rights to custody of a child, they can lose those rights through their actions.

Grandparents have their own set of rights to file for custody. The word custody can also mean visitation (they are interchangeable).

Anyone that files an action through the court for custody must first attend mediation with the other parent (or parties filing for custody). Mediation can be waived in limited circumstances, but generally it is one of the best places to settle your custody disputes. Situations that involve domestic violence, abuse to the children, substance abuse, or other problems may necessitate a motion to waive mediation being filed with the initial pleadings. Attorneys are not allowed to attend the court ordered mediation, only the parties. Mediation is confidential and none of the information or offers made in mediation may be discussed in court.

The guidepost for child custody cases and the most important question that a judge must ask is what is in the best interests of the minor child.

Child Support

Any person or agency having custody of a child may file for support of a child. A minor child that has a guardian may have their guardian institute a child support claim on the child’s behalf. There is a presumption that the biological mother and father will be primarily responsible for the support of the minor child. Additionally, parents of a minor that has their own child while under the age of 18 are legally responsible for BOTH their child and their grandchild’s child support until their child reaches maturity.

When one parent is voluntarily underemployed or depressing their income in bad faith, the court can impute (or create an imaginary amount) of income to use to set child support. The North Carolina General Legislature has established guidelines and worksheets so that everyone can determine their child support obligation with some basic information.

The primary information you need is as follows:

  1. The gross income from all sources for both parents.
  2. The total amount of work related (or school related) daycare expenses for the minor children.
  3. The cost of the medical insurance premium for each child.
  4. Any extraordinary expenses.
  5. The total amount of overnights the minor child spends with each parent.

Once you have this information you can create a worksheet. Worksheets are supposed to meet the reasonable needs of the minor child(ren) based on the children’s standard of living.

It is imperative that parents agree on who will claim the minor child for tax purposes, in what ratio or amount each parent will contribute to medical expenses, and any other child related expenses which the parties may incur. Note that a parent does not have an obligation to pay for college expenses unless they agree in writing to assume such an obligation, which we rarely recommend.

Once child support is established and being paid by an order, it should also be paid to the payee and withdrawn from the payor’s paychecks through wage withholding. Direct deposit can also be used by the parties if they do not want the government involved in their child support obligations.

Client Questions

My spouse consumes alcohol to excess daily, but still works and does not have any driving infractions. Will the court care and grant me custody?

Answer:

Yes, the court cares about all the details of your children’s lives. The court looks at each custody case separately and gives due deference to the parties and the specific children. The court sometimes has the difficult time in picking between two good parents, but often the court has to make a wise decision between a good parent and one that only appears good. Giving the court all the information you believe is relevant to the raising of your children is imperative and helps the court determine the best interests of the minor children.

Do “the guidelines” apply to me even when I lost my job and have no income.

Answer:

Maybe. If the court finds that you are voluntarily underemployed and depressing your income and could/should be working, then the court can impute your income number (or basically create and imagine a false number and use that to fill in the guideline information). However, you may need to immediately file for a modification of child support. Child support payments vest. What that means is when you have a court order, on the date the payments become due they will always be due and cannot be retroactively modified or changed. So you need to file a motion to modify child support the moment you lose your job or have a significant reduction in income, regardless of the circumstances around said reduction.

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You may have come to the website today searching for something specific that is not listed here. Please call as we cannot list everything here and combined we have extensive knowledge of every area of law that may affect your family in district court or we can refer you as necessary.

Cape Fear Family Law gave me a new life when I was hopeless. I don’t want to sound dramatic, but I had so many problems and they helped me work through each and every one of them.
-Rick P.

Children