Family Law Q&A – Part II

Family law Q&A with Courtney Smith, Charlotte Family Law Specialist with Tin, Fulton, Walker & Owen.

Question: My 15 year-old daughter is pregnant and the father of the child has not been in the picture for 8 months. My daughter wants the baby to have her stepfather’s last name. Can my daughter give her baby any surname she wants?

Answer: Yes, she may name the baby whatever she likes.

Question: Our daughter had a baby in NC. The baby is now 11 months old. The father is a complete loser, however, our daughter has lived with him for the first 11 months of the baby’s life. She finally left him and came to our house. They were never married. Can the father get an emergency custody order?

Answer: Your understanding of emergency custody is not accurate, but not altogether wrong either. In NC, the bases for emergency custody are limited to 3 things: 1) substantial risk of bodily injury to the children, 2) substantial risk of sexual abuse of the children, or 3) substantial risk of a parent fleeing the state with the children for purposes of evading jurisdiction. If a parent takes a child out of NC over the objection of the other parent, then that parent may file for and get an emergency ex parte custody order. However, this would need to be done immediately after the child has left the state. Delay of any significance calls into question whether or not the situation is truly an emergency and I believe any judge would question the motives of a parent who files such a motion weeks or months after the child has left the state. However, you need to be aware that until the child has resided in some other state for at least 6 months, NC will continue to be the child’s “home state” as that term is defined by statute (the Uniform Child Custody Jurisdiction and Enforcement Act, aka UCCJEA) and accordingly, NC will be the only state with jurisdiction to make a custody determination. Once 6 months have elapsed, the new state the child has been living in will be considered the child’s home state and that state would then be the appropriate state to make a custody determination. Both emergency custody and custody jurisdiction issues can be challenging, so I would encourage you to hire an attorney and discuss the whole situation in detail. I hope this information helps!

Question: My husband and I recently separated and the car that I have been driving is titled in his name. The loan on the car is also only in my husband’s name. Can my husband take the car from me? 

Answer: So sorry to hear you are dealing with this! It sounds like the car you are referring to is marital property (if it was purchased prior to your date of separation from your husband, then it most likely is marital property). All marital and divisible property is subject to equitable distribution, meaning the Court can decide how your property will be divided if you and your husband are unable to agree. I suggest you file a complaint for equitable distribution, and include a motion for interim distribution asking the court to distribute the car to you. The motion for interim distribution could be heard fairly quickly after you file your complaint and initiate the process. It would also make sense to go ahead and include claims for custody, child support, and, if applicable to your situation, alimony, with the complaint. In Mecklenburg County, the Self Serve Center at the Mecklenburg County courthouse is a great resource if you are unable to afford to hire an attorney to represent you. I hope this information helps!

Question: I’m hoping to have joint custody of my daughter, but her mother and I live in different counties over 30 minutes apart. I want more time with my daughter but the school her mother’s home is zoned for is much better than the school my home is zoned for. It is unrealistic for me to drive her to school given the distance. Is joint (50/50) custody of my child, where I have her live with me during the summer, possible/realistic?

Answer: So the nice thing about parenting agreements (or custody orders, or whatever you want to call the document which details your custody arrangement) is that they are entirely customizable and can be crafted to meet the specific needs of your family and your situation. The focus should always be on what is best for your child, but that is the only limitation. If your time with your daughter during the school year is primarily on weekends, then perhaps during the summer you could reverse that so that your daughter lives primarily with you and spends the weekends with her mother. I would encourage you to get into mediation with your ex so that you can discuss possible solutions, rather than going to trial and hoping a judge makes the right call. It is always a better outcome when you have direct control over the end result, versus having a stranger (the judge) decide for you. I hope this information helps.

Question: My former wife is remarried to a man who has a criminal record and was recently arrested and charged with various violent crimes. She wants to bring our children back around her husband. My current wife and I have had the children since they got out of school and she’s only seen them a handful of times since then. Her husband is very unstable. Can I get emergency custody?

Answer: Yes, you can and should file for emergency custody given the threat to your children’s lives, but in doing so, you need to understand what the bases for emergency custody are. The relevant statute is NCGS § 50-13.5(d). The bases for emergency custody are 1) substantial risk of bodily injury, 2) substantial risk of sexual abuse, or 3) substantial risk that a parent will flee the state of NC with the children for purposes of evading jurisdiction. Emergency custody is intended to be available only in true emergency situations. I would encourage you to hire an experienced attorney who practices family law primarily to help you with this to ensure you get it right. It is not something that is easily done on your own. Additionally, if you already have a permanent custody order in place, then your motion for emergency custody will need to be paired with a motion to modify custody. If you do not have a permanent custody order in place, then this is not applicable. I hope this information is helpful!

Question: My sister is 16 soon to be 17 and living in Missouri; I am married and living in Jacksonville, NC (my husband is in the military). My mother wants someone to take custody of my sister. Can I contact a lawyer in Missouri about getting custody of my sister?

Answer: Yes, you should have a Missouri attorney handle this for you because jurisdiction of custody of your sister, who is and has been a resident of Missouri, is in Missouri, not North Carolina. It should not be a problem to consult with/hire an attorney in Missouri even though you are not local. If things in Missouri are at all similar to NC, you should be able to have a consent order prepared providing for custody to be with you, and addressing child support (i.e., that there would be no child support paid, so that your mom can be assured she will not have any liability for child support). Just realize that if your mom will not agree to the terms and sign off on the consent order, there is nothing you can do to force her to sign it. And pursuing custody of your sister through the court system (i.e., filing a claim and getting a judge to award you custody) is a whole different story and would likely be very costly.

There are a number of resources available to find reputable, experienced attorneys. Avvo is one, but I also like to check out IACP’s directory. IACP is the International Academy of Collaborative Professionals, so any member is going to be someone trained in Collaborative Practice and resolution-oriented. The AAML (American Academy of Matrimonial Lawyers) is also a good resource.Hope this information is helpful!

Question: My daughter has a mental illness and wants to protect her visitation rights with her child even though custody will be granted to the father. What are reasonable requests for her?

Answer: The smartest way your daughter can protect her interests is to negotiate a custody agreement with the father so that they can come up with an agreement they have control over, rather than having a judge make the decision for them. The number one concern when a parent has a mental health issue is the child’s safety, so whatever precautions are necessary to ensure the child’s safety are reasonable (and I would need more detail about your daughter’s issues to be able to give you more specific advice). There is less of a stigma now with mental health issues and your daughter should be proactive in getting the care she needs. She cannot be there for her child unless she is healthy. Don’t try to hide the issue or act as if it is non-existent, instead acknowledge it, get the care needed, and hopefully work on an agreement with the other parent so that when well, your daughter has more time with her child. I hope this information helps!

Article by Courtney Smith, Board Certified Specialist in Family Law




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