Frequently Asked Questions About Children
Q: My husband and I are not divorced yet. Should I have something drawn up stating that I am taking the children out of state.
My boys and I are moving back to NY. My husband and I currently live in NC—we are filing for bankruptcy—he has not worked in 3 years, and I lost my jobs 6 months ago. He has agreed that I should move back to NY. Should I have paperwork drawn up stating I am taking the boys out of state? Is this necessary? (Charlotte, NC)
A: If he is in agreement, a Separation Agreement & Property Settlement that resolves child custody, property division, spousal support and the like would save any misunderstandings in the future. It can also be incorporated into a divorce decree when you divorce thereby becoming a court order. We prepare these routinely through our state-wide Virtual Law Office. You technically do not need something signed but if he later changes his mind, you could suffer great expense in dealing with a child custody lawsuit. You may also have problems enrolling the child(ren) in school, etc.
Q: Can a 16-year-old living with a parent in another state decide to live with the other parent in NC?
My daughter wants to live with me and not her father. Can a 16 year old child living in PA decide, without going to court, to live with her mother in NC? (Jacksonville, NC)
A: Is there an existing child custody order? If so, the court that issued it has control over the child. Is there an existing written parenting agreement? If so, that may define contractual relations upon which you may have to comply. If there is no existing custody order and no parenting agreement, each parent has an equal right of access to the child. But if she has been living in PA for more than six months, PA will likely have jurisdiction and any child custody litigation would occur there. Most judges will defer to the wishes of a 16 year old *unless* there are good reasons to make the 16 year old live with the other parent. See an attorney ASAP. If a court order is in place, see an attorney in the county/state that issued the court order. If no court order and if she has been in PA for more than six months, see an attorney in PA where she lives.
Q: Will I be able to get joint or full custody?
I have 2 kids, one 12 and the other almost 11. They tell me they want to stay with me. Their mom did not put me on their birth certificate but I have been paying child support about 10 years. She does not let me see them except every other weekend. If I do get them other than that I have to argue with her. I deserve and want to spend more time with them. I currently only have a two bedroom house but working on trying to get a bigger one. My girlfriend’s daughter stays in the 2nd bedroom. What can I do to get more time with my kids? Is joint custody or full custody an option? (Lexington, NC)
A: 1) File an action to legitimate the children so that they will have the same rights as if they were born to a married couple; 2) File a custody action so that you can get a court order that specifies your visitation (or custody) with particularity. Then there will be no arguing about when they visit with you. It will all be set out in the court order. You will need a lawyer to help you with #1 and #2.
Q: I have been a student in NY but a NC resident father and his mother are threatening me
The father has caused me nothing but stress because I am leaving NY to move back to my resident state after graduation. They continue to stress me out... one week threatening to fight me and the other week telling me i am a wonderful mother. I just found out their intent is to file for full custody because I am leaving the state and they want the baby here. I have received no financial help from the father except for the initial pregnancy test and a bottle of vitamins. He has provided no additional support just stress... Is it possible for him to take my child? He hasn't been an upstanding citizen with no stable home where he lives they all smoke around the children and he also hasn't paid taxes any that I am aware of. (Wilmington, NC)
A: I am assuming there has never been a legal proceeding regarding child custody and that there is no written and signed parenting agreement between you. If this is the case, the first consideration is what state has jurisdiction.
Most states have enacted the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). The child's "home state" of residence is the location where the child has lived for the past six months. If the child is at least six months old and has lived with you in NY, it may be that any litigation will need to be in the State of NY. Does NY consider you a resident of another state? The baby could *possibly* be considered to be a resident of your home state. So consult an attorney in NY ASAP. You need an attorney to help you determine jurisdiction before you can seek advice. The advice will determine upon the state that has jurisdiction.
Q: Can I get my son from his grandparents?
My 15 year old son has lived with his grandparents for years because my ex dropped him off there years ago. I want him to come live with me now. My ex has a record of abuse and a criminal record so I would have no problem proving she is unfit. (Henderson, NC)
A: The question is whether you acted inconsistent with your rights by letting your son stay at his grandparents' house all this time. If you have maintained contact with your son and regularly visited him, you should be able to bring him to your house especially if he wants this.
See an attorney and if there is no custody order in place, you will have to commence a new lawsuit.
Q: If neither parent has legal custody can the other parent go take children from their aunt?
Aunt has custody legally through the court in North Carolina, can the other parent take the children? (Lexington, NC)
A: No, if the aunt has legal custody, then she has custody! You can't ust show up and take the children. If there was no court order then mother and father have an equal right to the children and this is why attorneys recommend that you file for a court order as soon as possible after a separation. You need to seek help from an attorney. If there has been a substantial change of circumstances that would justify filing a motion to modify custody, you can file the motion, prove your case (hopefully) and ask the judge to modify the custodial situation. The overall public policy goal is to get children back with their parent(s) and this is in your favor.
Q: Which type of custody agreement do I need to have my child with me and make him bring her back?
My daughter is now 6 months old. I thought we had an understanding that she would live with me and visit him. We agreed that I would give him the benefit of the doubt before I go to get a child support order. So I let her go visit and I started working. He was so understanding and accommodating that I let her stay for a little while longer than originally planned. She had a checkup and then I told him she had to come home. He says he can take better care of her up there with him than he can down here with me. We are in the same state but live in different counties. He does not want to have to help pay for childcare. He has threatened to run off with her. What can I do to establish barriers and rules that he understands? (Goldsboro, NC)
A: His threat to "run off with her" gives you grounds to seek an Ex-Parte Emergency Custody Order. An attorney should be able to have a judge issue an order upon filing of a lawsuit that gives you immediate custody pending a hearing. You would then be able to go get your daughter with the help of law enforcement, if necessary. At that point, you can deal with the other issues including child support.
Q: How do I find out what my ex-husband’s income is and how much he pays for health insurance?
He will not give me a real answer. I am trying to draw up divorce papers and having no luck with real answers. Please help me I am at a wit's end. Thanks! (Charlotte, NC)
A: File a lawsuit (Summons & Complaint) if there has never been a child support order established. File a Motion to Modify if you have cause to do so. You can obtain all of this information through formal discovery that he would be required to answer under oath. You can ask him written questions that he must answer in writing called Interrogatories. You can request documents such as his most recent paystub, W-2, tax returns, bank records, and health insurance documents. We can prepare these documents for you in our Virtual Law Office.
Q: How can I lower my child support?
My wife and I have joint legal temporary custody. I see my daughter every other weekend from Thursday to Monday morning. With child support calculations and after rent, utility, health insurance for me and daughter, car insurance, phone, I will only have $247 to live off for a month in which I have buy food and other misc. for me and daughter. It is almost impossible to survive with this amount in a month. The mother is more qualified in terms of her education than me but she declines to work or work any type of job. She has decided to back to school to get an MBA. She has a Ph.D. from another country which is equal to a masters degree here in the US. I am still working on my bachelors. Please tell me if there is anything I can do lower the child support. I don't know what to do. Thank you. (Morrisville, NC)
A: You should check to see whether you are paying the proper amount of child support in accordance with the North Carolina Child Support Guidelines. Since she is not working (and I assume has a child over the age of three), you can impute minimum wage to her. If the net calculation is more than 15% different than what you are currently paying and it has been more than three years since the last child support order, you should file a motion to decrease your child support. If it has been less than three years, you will need significantly more than a 15% change. You may also want to file a motion to deviate from the NC Child Support Guidelines. An attorney would be needed to help you do this because you have the burden of proving why you need to deviate from the guidelines. But a deviation could save you a significant amount of child support each month.
Termination of parental rights & adoption
Q: If parental rights to a child are signed to the other parent, can you get the rights back?
If you sign your rights to a child to the other parent can you go back and get your rights back? (North Carolina)
A: That will largely depend on how it was done and how long it has been. If there is a Consent to Direct Adoption, you only have 7 days under N.C. Gen. Stat. §48-3-307. You need to see an attorney ASAP. Do not even wait one day—deal with this NOW!
Q: I want the father to terminate his rights. How do I do this?
My husband and I have been married for 9 years. We separated for 6 months. I had a baby by another man. My husband and I got back together after I found out I was 5 months pregnant. The child is 5 years of age now. The biological father has never seen him. He has told me he does not want anything to do with the child and that he does not want him. (Winston Salem, NC)
A: If the biological dad was under a court order to pay child support and has not paid for over a year, that would be grounds to terminate his rights. Other grounds are detailed in NC Statute.
Another approach would be for your husband to file for adoption but this will only work with the bio dad's consent. Otherwise, you will have to terminate parental rights in order to be allowed to adopt.
Q: Involuntary termination of parental rights
My son is 10 and I have been married to my husband for 2.5 years. He wishes to adopt my son. Although he's always known where he is and how to reach me, his bio dad has only seen him a total of 6 times in his life all before the age of 2, and has never pursued legal visitation of any kind. He did not sign the birth certificate. His wages are currently garnished for child support, but he still owes over $4,000 in back. He contacted me when my son was 7 to inquire about him, but by that time I had moved out of state and was weary of his motivation and dedication to actually seeing him and my son didn't know who he was. Now we have contacted him to sign away his rights, so my husband can adopt my son, and he has refused and wants to get to know him via mail. Should we pursue the adoption? (Hickory, NC)
A: To be successful with the adoption, you will have to either get him to consent or have his parental rights terminated. I have posted a link below with the grounds for terminating parental rights. If he is paying child support (it does not matter if by wage garnishment), unless another factor applies, you will have a hard time terminating his rights.
Department of Social Services (DSS) legal issues
Q: Fighting DSS
My sister and her ex boyfriend lost custody of their 4 year old son. They had been fighting over custody, the child was found with bruises, while in dad’s care so the judge put him in foster care. I have been told that twice the judge asked for family member names. Mine had been given twice. Yet no phone calls. I called his social worker who stated she didn't get the order from the judge. What do you do when the courts and DSS are failing the child? I can't at this time afford a lawyer. The child has a Guardian Ad Litem but she doesn't seem to be helpful at all. There are so many issues regarding this case, but my only interest is getting my nephew with family. From what I've read in the NC State Statutes, he should be placed with qualifying family first. (North Carolina)
A: If a Chapter 7 DSS case was filed with the Courts it "trumps" any Chapter 50 custody action. However, once a Chapter 50 action is filed, DSS will sometimes yield the field. If this was all done without litigation, you are in the driver's seat. Note, I always recommend that parents never do anything voluntarily with DSS.
My advice is to file an action for child custody. It seems you should be able to prove both mother and father unfit using DSS staff as witnesses and their reports. You will need to also file a Motion for DSS records because they can only be released with a court order. If they are not unfit, then the parents should get the children back.
You said you can't afford an attorney but you should consider using the NC Bar Referral Service which only costs $30 for a 30 minute consultation and an attorney who would "unbundle" their services. Information on unbundling is available on our Web site under Virtual Law Office.
Notice & Disclaimer: These questions were posted on Avvo, Lawguru, or a similar service. Some have been slightly altered to correct grammar while others are posted intact. This information has been posted for educational and informational purposes only. You should seek help from an attorney licensed to practice divorce and family law in the State of North Carolina because the facts of your particular situation may warrant a different answer. No attorney client relationship created through the use of this Web site. Information pertains to the State of North Carolina only.
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