Month: September 2023

Can I Give Up My Rights as a Parent?

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Especially when child support is pending, some people mistakenly think they can avoid paying support, or avoid the other parent seeking visitation, if one parent surrenders parental rights. Because parents have legal duties to their children, and because various rights as next of kin flow from parents, there are very few occasions when “giving up” parental rights is legally possible. Courts are extremely hesitant to legally erase a parent from a child’s life unless there is another adult stepping up to legally assume that role. Making sure the parent is in fact the parent (maternity and/or paternity and/or legitimation) is a legal determination, and this article assumes these designations have been made.

Duties and Rights of Parents

Parents naturally have constitutionally protected rights to the care and custody of their children. So long as they meet their basic responsibilities as parents, the state has little say about their parenting so long as the children are adequately cared for and safe. Parents have a legal obligation to support children or pay child support but there are other legal benefits to which children are entitled. Children, both natural and adopted, have rights such as social security death benefits, military benefits rights, and legal claims for wrongful death of parents in appropriate cases, and inheritance rights, to name a few. Children have legal benefits from a parent even if that parent fails to pay child support or is a parent in name only.

How Are Rights Given Up?

Choosing not to pursue visitation with your child is quite different from surrendering your legal rights as a parent.  One example of surrendering parental rights is found in North Carolina’s safe surrender laws, for infants seven days old or younger. Parents who would otherwise abandon an infant are given legal protection from criminal prosecution if they leave the infant with an appropriate agency or individual, such as a social worker, law enforcement officer, or an emergency medical service worker. NC Gen. Stat. 7B-500 et seq.

A parent can give legal consent to allow the NC Department of Social Services (DSS) to facilitate an adoption by a step-parent if the other parent has remarried and he or she desires to adopt, or adoption by a third-party. The state then assigns new parents who legally assume the rights and duties of parents. If only one parent consents to an adoption, it becomes a complicated legal matter beyond the scope of this article.

When a parent is unable or unwilling to appropriately parent a child, DSS will independently initiate legal proceedings to protect a child. When DSS becomes the legal custodian of a child, parents are typically given access to resources to assist them, such as substance abuse treatment. If the assistance is not accepted or the parents cannot or will not parent the child, the state (or a third-party) may initiate legal action called “termination of parental rights.” If the parental rights are terminated, DSS will often clear the child for adoption.

Rights of Unmarried Couples

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Unmarried Couples

For a variety of reasons, many people in romantic relationships do not get married. Instead, they may live together, purchase a home together, share their finances, and place debts or title to assets in their joint names. Many retired, divorced, or widowed individuals remain unmarried because they do not want to lose retirement or military benefits. Not only does marriage impact numerous rights and responsibilities, it creates various legal relationships, which most people don’t realize.

What About Property?

North Carolina does not provide for common law marriage, but will recognize one if it was valid in a state that does recognize common law marriage. If unmarried co-owners of a residence separate, the residence is not subject to equitable distribution, the process by which the court divides property between married people. Instead, there are different, and frequently more expensive, court alternatives that must be utilized if the parties are unable to agree on matters such as possession of the residence, who must pay the mortgage payments and what to do if only one party wants to sell the residence. Real property ownership is completely different for unmarried property owners, and deeds must be drafted accordingly to create the desired result.  Similarly, unmarried partners who place both partners’ names on other assets, such as vehicle titles and bank accounts, or on loans or credit card accounts, face a different procedure for resolving disputes.

Your Children

When parties have a child together, there are many rights and obligations both parents have to care for and support their child. There are different rights and obligations for parents when they are married. North Carolina law concerning a child’s paternity, birth certificate, adoption, and legitimation can be very complex and appear somewhat arbitrary when comparing the rights between married and unmarried parents. The rights of mothers and fathers also vary until certain legal events take place. Sometimes, failure to assert parental rights as an unmarried parent can lead to the loss of those rights, in the practical sense of the word, if not literally.

Your Legal Affairs and Estate Planning

Unmarried partners do not have the same inheritance rights as spouses, so estate planning is important, especially when parties live together but only one party owns the residence.  There are numerous other estate planning and end of life considerations that must be taken into account, such as deciding things such as who will make medical decisions or manage finances if one partner is no longer able to do so. Presently, only spouses may be covered on health insurance policies and/or receive social security benefits in the event of a death (or retirement in some circumstances).

Hired Guns: Experts in Family Law Cases

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In cases of marital property, child support, alimony and even child custody cases, an attorney may advise a client to hire an expert.  In these types of cases, there are two types of experts, those who act as a consultant for the attorney and client, and those who testify in depositions or court as expert witnesses. Typical experts in family law cases include CPAs, business valuators, medical doctors or psychologists, appraisers or any number of professionals to shed light on the situation at hand.

Consulting Experts

When one or both parties are self-employed, a CPA might review the case and advise the attorney what the true income is. Income for support is usually quite different from incomes claimed on tax returns, even when the tax returns are perfectly legitimate. The IRS looks at the tax code at things like deductions and depreciation. However, the judge in a support case is looking at the true income available to a party, which might include non-cash compensation such as a company car or other expenses paid by the company. Appraisers are not just used to value homes, but for anything from jewelry and collections of guns, to paintings or baseball cards. Occasionally, both parties may reach an agreement on a value when the expert gives his or her opinion. Other times, there is no agreement on what the expert says, so a trial is necessary.

Expert Witnesses

Non-expert witnesses testify about facts based on what he or she has seen or heard, and cannot give their opinion on those facts. By contrast, an expert gives his or her opinion about something. Although there are many types of experts, all must have “scientific, technical or other specialized knowledge” to help the judge understand the evidence.  The expert generally has special skill, experience, training, or education. See Rule 702 of the NC Evidence Code.

For example, a psychologist may qualify as an expert to testify about what he or she believes is in a child’s best interest in a child custody case. The psychologist meets with each of the family members several times and performs psychological testing on them before he or she prepares a report for the judge known as a child custody evaluation. It is then given to both parents so their attorneys can ask the expert questions or cross examine the expert in court. Parents can request a child custody evaluation for any reason but they often request one when the child or parent has medical problems, anxiety, depression, substance abuse, or other mental health concerns. Expert witnesses may be chosen by agreement of the parties or one party may file a motion requesting the judge to appoint an expert by court order.

What Is Family Court?

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In some North Carolina counties, including Pitt County, there is a specific Family Court Program devoted to cases involving child custody and support, alimony and equitable distribution (division of marital property). In Pitt County we have a Family Court Administrator and two Family Court Coordinators. I’ll call the program FC for Family Court.

What’s the Role of Family Court?

FC operates behind the scenes kind of like air traffic controllers, herding judges, attorneys, unrepresented people and miscellaneous others through the court system in family law cases. Their objective is to help everyone navigate the court system. Contrast FC with clerks of court who are frequently in the courtroom keeping track of exhibits, swearing or affirming witnesses to testify, and having documents available for the judge during the trial. Judges have staff members who support the judges. However, judges preside over more than just family law cases. For example, judges handle cases in criminal court and traffic court.

What Does Family Court Do?

FC follows each case and enforces the local rules that apply to the procedures attorneys, parties, and judges must follow. In consultation with the judges, FC has some discretion to make certain administrative decisions, such as facilitating routine requests to continue cases. This helps keep the process moving along a bit quicker. FC monitors the completion of cases, prodding them to be resolved one way or the other instead of leaving them linger unresolved if people drag their feet. Annually, the North Carolina Judicial Branch, attorneys and citizens have to advocate strongly to keep FC programs from being cut out from the state budget. Some people don’t realize the money saved by the state and time saved by the judges by employing additional employees to operate Family Court. After all, nobody gets married (or has children) expecting to be a party in a lawsuit in the midst of a crisis. They deserve a system that is responsive and gives them a timely resolution.

The Benefits of Family Court

The old system not only wasted judges’ time, it wasted attorneys’ time, costing clients more. Attorneys would have to repeatedly prepare for court every couple weeks as new events and incidents in the family arose because the case might be heard the next week. FC allows attorneys to better prepare our cases and minimizes inconvenience to parties and witnesses who were often placed on standby for months as cases were usually continued every two weeks. Although many people don’t recognize it, taxpayers save money with FC. Staff time is much less expensive than that of the judges. The fewer hours a judge spends dealing with things like scheduling trials, the better.

Pitt County modernized our local court rules and created consistency by developing certain forms for routine matters. Because FC cases are assigned to judges, each judge knows the family dynamics. That alleviates the need for a judge to plow through a file (sometimes five or six inches thick) to familiarize himself or herself with the family before every hearing. This not only makes court more efficient, saving the court resources, but it gives the parties better outcomes.

What is a Legal Separation in North Carolina?

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In our state, the term “legally separated” is a term of art used by attorneys, and misused by many non-attorneys. This legal separation is a decree made by a judge after a special trial based on marital fault. The court enters an official decree, stating that you or your spouse was wronged and declaring you separated. Why do all of this to separate? Because people are correctly reluctant to move out of the family home for fear of committing abandonment. Marital misconduct (marital fault) can easily cause a great deal of harm to a spouse’s case. This process of a judge declaring a person to be legally separated is a rare event indeed, but it is still alive and well in our state.  In legal terms, this process of declaring people to be separated, but still married to each other, is called a divorce from bed and board.

What people usually mean is a “separation” that will allow them to get divorced after a year of separation, Two main things are required to be separated for purposes of a divorce. First, the husband and wife must not live together in the same residence for at least one year. Living in the same residence in different parts of the house is not adequate. Second, either the husband or the wife must intend for the separation to be permanent. Note there is no requirement that both intend the separation to be permanent; only one person must. If they are living separately but neither intends to be separated, such as those separated by military service or extensive travel, they are not separated for the purpose of getting divorced.  There is no legal requirement for any documents to be written or signed for people to be separated.  The fact that people live apart, and one of them intends the separation to be permanent, is sufficient to be separated for the purpose of filing for a divorce after one year has passed.

Clients sometimes ask me if they can agree to say they have been separated for a whole year, when they have only been separated a few months. The answer is always NO. Alleging untruthful things in a divorce complaint (the document that generates the lawsuit) constitutes the crime of perjury, whether one person commits perjury or both do, regardless of whether you agree to do so. The process of a judge entering a divorce based on one year of separation is called an absolute divorce.  Once this type of divorce is entered, each person is legally free to remarry if he or she chooses to do so.

 

 

What’s Involved With a Divorce?

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In North Carolina, marital fault is not required to obtain a divorce. In most circumstances, the parties must be separated for at least one year before either party may file a lawsuit for a divorce. A divorce severs the legal relationship between two married people, and impacts many legal rights and responsibilities. There is no common law marriage in our state, although North Carolina will recognize one if it was validly performed in a state that does permit common law marriage. A divorce is a ruling on the legal relationship between you and your spouse. A divorce makes a critical difference in many important situations, such as health insurance, the way you file tax returns, and retirement and social security benefits, to name a few.

A divorce also controls when you have the right to file claims for alimony and marital property division, your rights to jointly owned property, including survivor rights, and others. If a married person changed his or her name, the divorce decree can restore the use of the original birth name or (under some circumstances) a former last name to that person. Alternatively, a person may file court proceedings requesting the use of the original or former name after the divorce should he or she later decide to do so.  When someone changes names, he or she should report the change to the proper government entities, such as the Social Security Administration and the NC Division of Motor Vehicles. If a lawsuit for a divorce has been filed, there are strict deadlines for filing responses to the lawsuit.  Certain marital rights are permanently lost if claims are not filed by the time a judge enters a divorce decree. ALWAYS consult with an attorney as soon as possible to discuss your rights in the event a divorce lawsuit has been filed.

 

Common Law Marriage: Did You Accidentally Get Married?

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Common law marriages are based on an agreement between the parties, without any paperwork or a formal ceremony performed by a person vested with authority to perform marriages. In my practice, I have met a number of people who believed they were “common law married” in North Carolina. Some people have the mistaken notion that if a couple lives together for some period of time, then the relationship is magically transformed into a legally valid marriage. Each state has laws that list the specific requirements of a marriage.

North Carolina is one of many states that does not permit common law marriage. A couple might have lived together for many years and even held themselves out as “husband and wife” but unless they have undergone the legal requirements of marriage, they were not legally married in this state. No doubt this is great news to some clients, who thought they “accidentally” got married, but bad news to others. And speaking of accidental marriage, much to the dismay of some of those same people, there is no accidental divorce (i.e., common law divorce).

What About Common Law Marriage From Other States?

There are U.S. states that recognize common law marriage. Some of those states are Western states that historically had to make a “do it yourself” marriage available to residents because there was such a small population that ministers or magistrates did not live in a town or close to one. Most of the settlers living in the Western U.S. did not want to “live in sin” without the benefit of marriage, so common law marriage in the United States was born. If a couple is validly married in another state that recognizes common law marriage, only then will North Carolina give their marriage decree full faith and credit, recognizing it as a valid marriage.

What is perjury?

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Perjury was deemed illegal by inclusion in the Ten Commandments, the first legal system, in Exodus 20:16. According to the Oxford Dictionary, the word perjury comes from the Latin word perjurium meaning false oath. In our state, perjury is defined as an intentional false statement under oath in court, in a deposition, or in matters the law requires a witness to be sworn.

Swearing or Affirming (Administering Oaths)

The person testifying in court swears to “tell the truth . . . so help me God.” Some people interpret the Bible as forbidding swearing.  As an alternative to swearing to tell the truth, a witness may choose to be affirmed. The oath is given exactly the same except that the word “affirm” is substituted for the word “swear” and the words “so help me God” are deleted. In our state, the law allows judges, clerks of court, notaries public and a few others to swear in or affirm a witness (i.e., administer an oath).

When Does Perjury Happen?

Most people know that when they appear to testify in court, they must tell the truth, the whole truth and nothing but the truth, but what does the rest of this definition for perjury mean and what are the other types of perjury? In a deposition, a witness is subpoenaed to a location outside of court to give testimony that will be typed up by a court reporter. Such a report may be used in court, and is treated the same way as courtroom testimony when it comes to perjury. Another way someone commits perjury is when the law requires something to be sworn. Frequently, this is when a statement is made in writing that is signed under oath, administered by the notary public. For example, in a lawsuit for marital property division or alimony, the documents filed at the courthouse require a notarized signature.

What Does This Have To Do With My Case?

The most important consequence of perjury is that it is a felony. NC Gen. Stat. §14-209 (as of the time of writing this article).  In fact, an attorney is an officer of the court who has taken an oath. When an attorney learns of the perjury, he or she has a legal duty to the court to immediately address it in court. The attorney may ask for a recess to speak to the client, or might have to make an emergency motion to withdraw as counsel, which indirectly tells the judge perjury is an issue. Aside from risking a felony conviction or your attorney making an emergency motion, your case is likely ruined.

People sometimes forget the judge hears testimony all day every day and is uniquely positioned to notice body language and other indirect or subtle signs of deception. Like judges, the attorney makes a living evaluating the truthfulness of a witness. He or she may cross examine you based on the lawsuit paperwork you have signed under oath. There may be a document or other proof he or she may ask you to read on the stand that is proof you are not being truthful. One consequence of untruthful testimony is that you lose your credibility and the judge will give the other party the benefit of the doubt. You lose.

 

What is a Deposition?

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What is a Deposition?

A deposition is essentially when a person testifies outside of a courtroom. The witness, who may be subpoenaed, is usually required to go to the office of one of the attorneys where a person called a court reporter also attends. The reporter prepares a written statement to be distributed to both sides. Each party must pay for a copy, which is usually charged at a rate per page, along with a sitting fee. The transcript prepared by the court reporter functions as sworn testimony.  It is sworn because the witness swears to tell the truth, the whole truth, and nothing but the truth. Rarely can anyone tell how long the deposition will last unless special arrangements have been made in advance by the attorneys.

Although the atmosphere is relaxed compared with the courtroom, the deposition cannot be underestimated. The written statement of testimony may be used for many purposes, one of which is court.  It can make or break a case.  Lawyers also get a preview of how the person will testify, and whether they seem to be credible or articulate. Like court, depositions are subject to many rules.  Most of the time, the objections must be addressed at the time of the trial.