IN THE SUPREME COURT OF NORTH CAROLINA
Filed 27 September 2019
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 27 September 2019
The North Carolina Court of Appeals ruled this week on a longstanding Charlotte child custody and contempt of court legal issue, described as, “an exceptionally contentious and prolonged custody battle” between a father and mother in Mecklenburg County Family Court. Litigation began in January 2007 involving the custody of two children, one of whom has since “aged out” and has been the subject of various Show Cause Orders, Motions to Show Cause, Charlotte child custody and Contempt of Court proceedings since he was 11 years old.
Another daughter, who is now 17, is the subject of the present appeal in the Charlotte Family Court matter entitled Grissom v. Cohen. To download a copy of the NC Court of Appeals opinion as published on October 2, 2018, see: Charlotte Contempt of Court Child Custody 2018
The extent and nature of the litigation in the matter is remarkable, involving four different Charlotte Family Court Judges, 600+ findings of fact in 2 Custody Orders and at least two full child custody trials in Mecklenburg County. While truly extraordinary in scope and duration, it does serve as an example of the lengths to which parents will fight for child custody and visitation in Charlotte – Bill Powers, Divorce Lawyer Charlotte NC
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a uniform law drafted by the Uniform Law Commission in 1997. The UCCJEA encompasses a set of guidelines for courts to follow in their determination of child custody. To date, the law has been adopted by 49 states and Washington, DC. The UCCJEA breaks down legal and physical custody, sole and joint custody, grandparent visitation rights as well as factors to assess custodial rights.
Legal and Physical Custody
The law has divided custodial rights into two categories (legal and physical custody). Legal custody is the right and obligation to make decisions about the child’s well-being and upbringing. These include decisions regarding the child’s schooling, medical care and religious activities. Many states normally permit both parents to share legal custody of the child depending on the circumstances of the custody case. Physical custody is the right of a parent to have a child reside with him or her. There are two forms of physical and legal custody: sole or joint custody.
A new North Carolina measure called Rylan’s Law will increase oversight in child custody cases, according to an article by The News & Observer.
Rylan’s Law came into existence to address existing inefficiencies in the state child custody system. Specifically, lawmakers point to the notorious story of a young boy named Rylan. This boy drowned in a pool in April 2016, only weeks before his second birthday.
Before his death, domestic violence concerns forced Rylan and his sister into foster care in October 2015. But several months later, a judge ruled to return the Ryland and his sister to their mother in December 2015. This happened despite the mother’s pending case for child abuse. Approximately four months later, Rylan was dead.
Today we will review a handful of key considerations for child custody situations that arise in North Carolina. Child custody is often the most challenging part of a divorce, with both parents fighting for custody of their children. In order to maintain focus on the children, North Carolina’s statutory approach places a premium value on the best interests of the children.
How Does North Carolina Determine Child Custody?
The most important factor in the determination of child custody in North Carolina is the best interest of the children involved. In determining best interest, the court attempts to examine multiple angles of the child’s domestic reality. As a result, the working and living situations of the parents come into play. The presence or threat of domestic violence is also an important consideration.
Today we will explore the North Carolina approach to child custody and child support. Before we delve into specifics, there is an overarching consideration we need to consider first. North Carolina places a high importance on the best interests of the child. In any determination of child custody or support, the court will examine what circumstances will yield the best outcome for the children involved.
What are the Different Types of Child Custody in North Carolina?
There are three major types of child custody in North Carolina.
When a divorce involves children, the North Carolina court system may have to help the parents determine how the children will spend their time between the two parents. In an earlier post, we briefly discussed child custody orders and explained that they were somewhat of a last resort in instances where the parents themselves could not agree on a custody arrangement.
After a custody order is set into place, it is usually in the best interests of everybody involved to abide by the order. However, custody orders are not set in stone. The courts can revisit them. Therefore, sometimes, one party will seek to modify a prior custody order.
When a marriage comes to an end, child custody is often one of the most hotly contested items throughout the divorce process. But what happens if there are stepparents/children involved? Does the biological parent always end up with his or her children, or does the stepparent ever seek and obtain custody? What about visitation rights of stepparents, or even stepgrandparents?
Study Finds that for Half of Children of Divorced Stepfamilies, a Strong Relationship with the Stepparent Remains Through Adulthood
A recent study found that the bonds created between stepchildren and their stepparents can last a lifetime even after the child’s biological parent and stepparent got divorced. According to one of the paper’s authors, Marilyn Coleman of the Department of Human Development and Family Science, “For a substantial portion of these children’s lives, they’ve been living with a stepparent, who, in many cases, became a parent to them.” When that strong relationship can be shown and proven to the court, there is a much greater chance of that stepparent being given partial custody or visitation rights. Coleman goes on to say that when “the couple breaks up, the family breaks up. . . what happens to these kids?
You have likely heard of joint custody, where you and the child’s other parent share legal responsibility for the child and, usually, the child stays with you part time and the other parent part time. Split custody, on the other hand, is a situation in which your two (or more) children’s living arrangements are split between you and the other spouse. For example, your 10-year-old son may live with you while your seven-year-old daughter lives with the other parent. The court usually frowns upon split custody for a variety of reasons. The average North Carolina family that has children has more than one. In fact, the average is 1.75 for families that do have children, according to the Census. We understand that there are many ways that child custody can go, and split custody may or may not work for you and your children.
Sibling Relationship is Lost
With a split custody arrangement, the sibling relationship between the two children would be lost or severely limited. The children would likely not see each other very often, even if you and the other parent had visitation with the other child on the weekends or if their time together with the same parent overlaps occasionally. The North Carolina court usually believes that it is in both children’s best interest to live together and, if joint custody is an option, to move between the two households as a pair instead of individually. During divorce, or any time of despair or uprooting of normal life and routine, a sibling can be the most beneficial part of a young child’s life. According to The Only Child Project, and reported in the Huffington Post, “Without a sibling to share the burden or ease his pangs, an only child’s experience of divorce is significantly higher than other children.”
Despite only one in six sole custodial parents being fathers, according to the Census, the court does not favor the mother over the father, or vice versa. In fact, the court makes the decision in favor of the child only. It seeks to find a solution that is in the child’s best interest. According to the North Carolina Bar, “the court must find that the custodian is a fit and proper person to have custody and that custody with that person is in the best interests of the children.” If the best interest is to grant sole custody to the mother, the court made that decision based on objective criteria, such as who the child’s primary caretaker was leading up to the divorce or separation, work schedules of either parent, care taking abilities of each parent, history of violence of each parent, home proximity to schools, proximity to grandparents or other potential caretakers, etc. In order to ensure that you are given a fair chance to show that your child’s best interests lay with you, do not hesitate to contact an attorney at once.
The Court has the Final Say
While the legal assistance of an experienced attorney is unparalleled in terms of importance to your case, a judge will make the final decision regarding your child’s custody care. Because of this, it is vital to show how living with you or allowing you to have legal decision making capabilities is in the child’s best interest. What do North Carolina courts look to when deciding custody matters? All of the following criteria are thoroughly examined, in regards to each parent’s: