Category: Children

Getting Attorney’s Fees in Family Law Cases

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In North Carolina family law cases, a party may seek attorney’s fees in court cases involving child custody and support, and for temporary and permanent alimony, among other claims. With a couple of rare and unique exceptions to the rule, attorney’s fees aren’t usually available to be awarded by the court in equitable distribution cases for division of marital assets and debts.

Child Custody and Support Claims

The law permits parents to ask the court to award attorney’s fees in child custody and support cases, including cases when a parent files a motion to modify the order that is already in place. There are three requirements. First, the person asking for fees must be an “interested party” meaning he or she is someone entitled to exercise the legal right to participate in the lawsuit. Second, the person must be acting in good faith, not filing a frivolous claim. The third requirement for the court to address is whether the person “has insufficient means to defray the expense of the suit.” In other words, the person had to turn to the courts to get help, which has created a financial hardship.  If the claim was for child support there is a fourth requirement. The parent who should be paying support “has refused to provide support which is adequate under the circumstances.” If the parent files a frivolous claim, the court is also entitled to award fees to the other parent. NC Gen. Stat. §50-13.5

Alimony and Temporary Alimony

If the court awards alimony or temporary alimony, called postseparation support, the judge has the authority to award attorney’s fees if the financially dependent spouse doesn’t have sufficient means to subsist during the pending case. That means the dependent spouse can’t meet living expenses until the judge enters an order for alimony. As is the case with children’s claims, the court must rule on whether the dependent spouse “has insufficient means to defray the expense of the suit.” These requirements also apply when the dependent spouse files a motion to modify the alimony. NC Gen. Stat. §50-16.4. At the trial, the attorney submits an affidavit about the fees, along with billing statements to show what has been paid. The judge generally confirms the fee is reasonable, considering the attorney’s skills and qualifications, and the type of work the attorney performed. Customarily, the client has to pay the attorney at the beginning of the case. If the fees are awarded, they are either reimbursed to the client or applied to any outstanding balance the client owes to the attorney. As is the case in so many family law cases in North Carolina, the judge has broad discretion when ruling on fees. A judge is free to order some, none or part of the fees requested.

Two’s Company and Three’s a Crowd: Third Parties in Family Law Cases

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Family law cases can be contentious enough with two people, but when there’s a third-party, it gets even more contentious and complicated. Third parties occur most frequently when marital property is at issue, and when there is a custody battle underway.

Third Party Rights

Once a third-party is named as a party in the lawsuit, he or she is entitled to the same rights as the other named parties in the lawsuit. But in an equitable distribution case, those rights extend only to the asset. Third parties have the right to call witnesses to testify, perform depositions, serve discovery, file motions, present evidence to the court, etc.

Equitable Distribution: Co-owners of Property

Most couples own property either in their joint names together or individually. But sometimes, a couple owns assets with a third-party who is a co-owner (CO). For instance, when a couple purchases a home, the in-laws might co-sign the mortgage note so the couple will qualify for the loan. Since they share legal responsibility for the mortgage debt, the in-laws might then want their names added to the deed. When a spouse files a lawsuit for equitable distribution, the division of marital property, the court makes a ruling on ownership of assets and debts. In that scenario, four people would be COs even though the younger couple would be the only residents living in the home. The law requires COs to be joined as parties to the case so they can protect their ownership interest. If the third-party COs are not included as parties to the lawsuit, the court does not have jurisdiction over that property. In the recent Carpenter v. Carpenter, the NC Court of Appeals vacated a court order because the lower court made a ruling on an investment account without naming the child as a third-party because the child was listed as an owner of the account. In another recent case, Nicks v. Nicks, the same result occurred when there were ownership interests in a business, but the business was not joined as a third-party to the lawsuit.

Child Custody Cases

Both parents have a constitutional right to the care and custody of their children. When it comes to non-parents, third parties have a heavy burden to bear if they ask the court to intervene as a party in a child custody case. The non-parent must show the parents’ constitutional rights should be limited because they are unfit. Or, the non-parent must prove the parents have acted in a manner that is contrary with their parental obligations. In other words, non-parents must show there is a very serious problem with the parents before the court could designate them as third parties because the parents have constitutional rights as parents. If they are granted the right to intervene in the case, they are then give the rights of any other party to the case.

Grandparents

Grandparents face the same hurdles as any other third-party when it comes to child custody cases. They have no special status in a child custody case. However, they do have one special rule. Because they are grandparents, they can in some circumstances be designated as third parties if a custody case is pending so they can ask the court for court-ordered visitation. This generally means the court will set aside time for visits, as opposed to giving them the ability to make parenting decisions or have any type of physical custody, which is really physical “possession” of the child.

Child Custody Evaluations in North Carolina: A Double-Edged Sword

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The vast majority of child custody cases are settled out of court.  Parents or custodians sometimes negotiate on their own with attorneys to reach an agreement. Another way an agreement in custody case can be resolved is by mandatory custody mediation where a neutral mediator and both parents meet in an effort to create an agreed-upon custody order.  The cases that fall outside of the vast majority and are litigated in court are the ones that are most complex. For example, it is difficult to “split the baby” when parents live in different parts of the country and both want to have primary custody.  That usually means that one parent will have most of the school year with the child or children, and the other will have most of the summer vacation. These are the types of cases in which parents often consider having a child custody evaluation performed.

What is a Child Custody Evaluation?

Performed by a psychologist, a CCE results in a written report that is provided to the court. The psychologist evaluator will then testify as an expert witness at the child custody trial. The exact details vary depending on what the expert is appointed by the court to do.  But the evaluator usually administers psychological testing, such a personality test called the MMPI-2, for each parent or guardian. The test results identify the strengths and weaknesses of each parent.  The evaluator typically reviews the medical and mental health records of the family members, meets with the family members separately and together to interview and observe them, and contacts third parties such as teachers or third parties who reside in the home. The evaluator might even do a home visit to each parent’s residence. Based on all of this, the CCE report will make recommendations about what is in the best interest of the child or children.

What Does the CCE include?

The CCE report will usually give the judge insight on what the child actually needs, as well as explain each parent’s parenting styles.  To over-simplify it in an example, if a child suffers from anxiety, he or she might need a very structured routine and one parent might be more decisive than the other.  There is usually a list of these sorts of conclusions, followed by recommendations, which almost always include a course of mental health treatment. That treatment must be referred to a third party professional because the evaluator psychologist is used only for court and is prohibited from treating any of the family members. Another recommendation might be for the court to assign a parenting coordinator, who is authorized to make minor decisions when the parents dispute what the custody order requires them to do. Recommendations are otherwise based on each family’s disputes and needs. These might include the frequency of phone calls with each parent, or who is better suited to make medical decisions if the child has serious medical problems.

What are the Advantages and Disadvantages?

If the report recommends a schedule or a parenting plan that benefits you, congratulations.  You now have a built-in expert witness testifying on your behalf. However, if the report favors the other parent, you are at a definite disadvantage. Overall, judges are inclined to accept the recommendations.  This is less about rubber stamping the report than it is about having an expert with a string of letters behind his or her name tell the judge why he or she should do what is in the report. Unlike a psychologist evaluator, the judge isn’t going to go to your house, give you a personality test, talk to your child (most likely) or observe each of you with your child. Instead, the judge is usually only getting to see you and the other parent for a few hours while you testify in your dress clothes. CCEs can be extremely expensive, and insurance usually does not cover them. One or both parties might choose to have an attorney depose the expert in a deposition, which adds significantly to the cost.  Judges often expect the parties to share the cost when they appoint the expert to perform the CCE.  After the trial, the judge has the authority to assign the costs for CCE, including reimbursement of one party by the other for the full cost, including the deposition and the expert testimony.

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.

Taking Care of Business: Child Support When a Parent is Self-Employed or Owns a Business

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Our state’s child support guidelines calculate child support obligations based on gross incomes of parents, any work-related childcare, health insurance and several other factors. When a parent has a salary and W-2 statement, it is usually easier to determine that parent’s gross income. A parent who is self-employed and/or owns a business has at least some control over his or her gross income. For this article, assume a self-employed person is the same as a business owner with 100% ownership.

NC guidelines define gross income for a self-employed parent as “gross receipts [of the business] minus ordinary and necessary expenses required for self-employment or business operation.” That means the court would calculate a disputed income by first looking at the total income generated by the business, then subtracting the business expenses. Business expenses claimed on tax returns may be perfectly acceptable to the IRS, but the court may or may not deduct them when determining income for child support. That is the tricky part.

But there are a few things that are clearly not subtracted from gross receipts, such as the accelerated component of depreciation expenses. The court considers each of the claimed business expenses and decides which will or will not be subtracted from the gross receipts generated by the business. Fringe benefits paid for by the business “are counted as income if they are significant and reduce personal living expenses.” Examples of these types of expenses that are considered income to the parent who is self-employed include use of a company car or free housing.

Are Bad Parents Rewarded in Custody Cases?

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In the real world, people’s morals form the foundation of their beliefs, of right and wrong. If someone does something wrong, there is an expectation of consequence or penalty. A parent punishes a child for bad behavior. Or, relatives might disown each other and spend decades estranged from one another because one of them wronged the other. Paying someone back, or washing your hands of him or her for “bad” behavior may be totally justified in the real world. In fact, that is usually the reason a couple separates.

Judges in custody cases look at things differently. It helps to think of court as its own little eco-system. Courts are based on the law, plodding through a checklist of legal considerations that must be made. These considerations are not necessarily based on right and wrong. Judges start from the premise of no-fault, similar to no-fault divorces. Why you separated is irrelevant to the judge if you obtain a divorce in North Carolina. Bad behavior of one parent matters little unless it relates to the safety and well-being of the child.

How Bad is Bad?

As with most of the matters in family cases, it is a matter of degree. Clients sometimes ask if the court will deny visitation or terminate the other parent’s rights. The answer is no, in the vast majority of cases. The degree of bad behavior that is required to do so is extreme. The courts will not deny visitation because the parent is mediocre, or because he or she is a poor parent. It is likely he or she will have visitation and the question becomes a matter of how frequently and for how long. If the other parent behaves poorly, the judge may try to fix it. For example, a judge can order a parent not to smoke in the home or car when the child is there. A judge might also require the parent to have no alcohol in the home, or go to counseling to address anger issues, depression, or other mental health concerns. A judge can require supervised visitation, depending on the family circumstances.

Do Judges Reward “Bad” Parents?

Bad behavior will not help the other parent’s case, but don’t expect the judge to say he or she blew it, and therefore, visitation is denied. Judges want children to have both parents if at all possible. For example, a parent who has not played an active role in a child’s life may return a few years later and persuade a judge to give him or her a second chance to gradually create some sort of relationship. This doesn’t mean a judge will give that parent custody, just the opportunity to see if a bond can be created or renewed. To the judge, the estranged parent isn’t being rewarded even though it feels like it. You will always be a parent and you will also be loved. But the judge’s goal is to see if the other parent can successfully play some role and give the child two parents.