Child Custody

One of the most litigated issues that can arise during a divorce is child custody and visitation. North Carolina law provides that custody determinations are to be made in the best interests of the child. No presumption exists between a mother and a father as to who better promotes the best interest of the child.

We represent both mothers and fathers. We can help with any custody dispute and work with our client to ensure that the best interest of the children is served. We offer a holistic approach to custody disputes which seeks to resolve the contested issues without the need for litigation if at all possible, consistent with the client’s objectives. This approach utilizes the expertise of other professionals such as child psychologists, social workers and others who can address the physical, mental and developmental needs of the children involved in the custody dispute. But when custody and visitation must be tried in a courtroom, we are experienced and highly skilled in custody litigation which requires detailed investigation, preparation and presentation in court.

We adhere to the Bounds of Advocacy promulgated by the American Academy of Matrimonial Lawyers regarding the involvement of children in contested custody matters. These provisions are as follows:

  1. An attorney representing a parent should consider the welfare of, and seek to minimize the adverse impact of the divorce on, the minor children.
  2. An attorney should not permit a client to contest child custody, contact or access for either financial leverage or vindictiveness.
  3. When issues in a representation affect the welfare of a minor child, an attorney should not initiate communication with the child, except in the presence of the child’s lawyer or guardian ad litem, with court permission, or as necessary to verify facts in motions and pleadings.
  4. An attorney should not bring a child to court or call a child as a witness without full discussion with the client and a reasonable belief that it is in the best interests of the child.
  5. An attorney should disclose information relating to a client or former client to the extent the lawyer reasonably believes necessary to prevent substantial physical or sexual abuse of a child.
  6. An attorney should not make or assist a client in making an allegation of child abuse unless there is a reasonable basis and evidence to believe it is true.

Child Custody Do’s and Don’ts

Tips to avoid having the children caught in the crossfire:

  1. Make sure your children understand that they are not the reason for the divorce. Keep the explanation simple, “your mother and I can no longer live together happily. You need to know that this has nothing to do with you. Your mom and I both love you very much and nothing will change that.”
  2. Take care when discussing litigation. Your children do not need to know the sum and substance of all legal documents, depositions, and proceedings.
  3. Allow the children to love both parents. Create an environment where the children can be free to love both parents.
  4. Do not send messages through your children. If you are unable to communicate by any means with your ex whether in-person, by phone, or e-mail, you may wish to consider co-parenting counseling or request a parent coordinator.
  5. Do not say disparaging things about the other parent in front of the children. Judges will expect you to be supportive of the children’s relationship with their other parent.
  6. Be supportive of your children’s activities. If at all possible, take your children to their activities when it is “your time.” On the other hand, be respectful of the other parent’s time with the children.
  7. Use good judgment before introducing your children to someone you are dating.
  8. Take the high road when possible.

Grandparents’ Rights in Custody Cases

When parents separate and divorce, grandparents sometimes get caught in the middle and opportunities to spend time with their grandchildren may be restricted by one or both parents. In those cases if grandparents don’t become legally involved in a custody case, they risk losing all rights to see their grandchildren in the future. One way that grandparents may maintain the special bond with their grandchildren is to “intervene” – that is, become parties to – a pending custody case so that they have a legal and enforceable right to visit their grandchildren after a divorce.

Grandparents may intervene in a custody case before the court reaches a decision on custody. After the court’s decision has been reached, grandparents may not intervene unless one of the parents later seeks to modify the initial custody order. Grandparents have a right to intervene in such cases, so long as the case is pending.

To intervene, the grandparent would ask the court to establish custody or visitation rights with the grandchild which are independent of the goodwill of the custodial parent. When a grandparent moves to intervene, the court must decide whether a “substantial relationship” exists between the grandparent and child, and whether it would be in the child’s best interest to order that a grandparent spend time with the child.

In a handful of North Carolina cases, grandparents lost their right to ever visit their grandchildren after a parent died following a final custody decision where the grandparents did not intervene and the surviving parent did not want the visits to occur. Under the law, the surviving parent and children constituted an intact family, and the courts have generally held in those cases that the grandparents had no right to intervene and the court no longer had jurisdiction to allow the grandparent to do so.

In a custody situation grandparents should consult an attorney with experience in grandparents’ custody and visitation rights to determine the best course for protecting that special bond with their grandchildren.

Parenting Coordinator Services

In North Carolina, the court may appoint a “parent coordinator” at any time during a child custody action involving minor children if all the parties consent. The primary role of the parent coordinator is to reduce conflict by identifying disputed issues, reducing misunderstandings, clarifying priorities, exploring compromise, developing methods of collaboration in parenting, and ensuring compliance with the court’s order of custody. In addition, the court may authorize a parent coordinator to determine issues regarding the implementation of the parenting plan that are not specifically governed by the court order when the parties are unable to reach an agreement.

In North Carolina the district court maintains a list of qualified parenting coordinators. To be eligible, the person must meet the following requirements:

  1. Hold a master’s degree in psychology, law, social work, counseling, medicine, or a related subject area.
  2. Have at least five years of related professional experience.
  3. Hold a current license in the parent coordinator’s area of practice.
  4. Complete the required training in topics related to the developmental stages of children, the dynamics of high-conflict families, stages and effects of divorce, problem solving techniques, mediation and legal issues.
  5. To remain eligible, the person must also attend parent coordinator seminars providing continuing education, group discussion, peer review, and support.

Jaime Davis is Certified Parenting Coordinator.

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