Child Custody

Child custody is always a very sensitive subject in divorce. Sadly, the fact is that no matter what either parent does or how well they work together, divorce will affect your children. Your job as a parent is to protect your children through the process and make sure that they have a safe and happy place to come home to each day. Above all else, children need to be loved and reassured during this difficult time. Our job is to take care of the legal aspects of your case so you can focus on your family. We will prepare your case for settlement or trial, and we provide each client with the attention it deserves. No family is the same, and no case is the same. Let us help you make certain that you and your family are on the right path. Child custody disputes happen, even between two good, caring parents. Let us help you navigate the difficult legal processes while you focus on whats most important.

WHAT IF WE HAVE AN AGREEMENT?

Child custody, like any other issue in family law, can be settled between the parties if they have come to an agreement. It is however, essential that any agreement be formalized in a legally enforceable way. There are two ways in which we accomplish this goal for our Clients: CHILD CUSTODY AGREEMENTS, usually as part of a separation agreement, or CONSENT ORDERS, which are Court Orders entered by consent without a trial containing the agreed upon custodial terms. Child Custody Agreements are simply contracts, usually part of a larger contract (Separation Agreement if the parties are married) which is generally negotiated and signed shortly after separation. These agreements work very well for dividing property, providing for alimony, setting child support and dividing property, however they have serous shortcomings in dealing with child custody.

A CHILD CUSTODY AGREEMENT is a contract containing terms of custody as agreed to by the parents of minor children. The fact is that while the parties often use these agreements for years without issue, no Court is required to follow a contract between two people with regard to the custody of children. If someone violates the Custody Agreement, you will have to file lawsuit for breach and ulitmately this may allow the Court to re-determine custody all over again. Courts are not bound by your agreement. Most courts will, as a practical matter, respect that agreement as much as possible, however they are required only to do what is deemed in the best interest of the children. As you will read below, a Consent Order is a different matter and is much more difficult for a Court or party to change.

A CONSENT ORDER is an order of the court, signed by a Judge, with all of the same effects as a court order entered after a trial, only it is entered without a trial based on the signed consent of the parties. Orders by consent can only be entered after a chld custody lawsuit is filed, however this can be arranged in such a way that the parties are not alarmed and understand it is only part of the settlement process. The Judge must then sign the order, which will typically happen absent extraordinary circumstances.

Typically, when parties have an agreement but need a consent order, we file what is known as a “friendly” lawsuit, which both parties are aware thatit is only being filed to enter a consent order. This avoids any surprises and anger from being served with a lawsuit that may jeopardize your agreement. Your attorney will then assist you with the preparation of the order. The order will set forth your agreement in detail and will not include any negative statements, findings or accusations about the parties unless otherwise agreed. Your attorney will then submit it to the Judge for signature and filing, at which point you will have all the protections and benefits of a custody order just as if you had just concluded a long and costly custody trial. Once entered and filed, the order is enforecable and any violations could conceivable result in jail time through a Motion and Order to Show Cause process, however jail is often a last resort. Violators of custody orders often have to reimburse the other party for their attorney fees and take corrective action or they will in fact be sent to jail for up to 60 days.

One final advantage with a consent order is that a court may not the terms of custody a party filing a proper Motion to Modify, setting a hearing, and the at that hearing the Court must find a “substantial change in circumstances since the entry of the prior order affecting the wellfare of the minor children”. If there has not been a substantial change in circumstances since the order was entered, then it cannot be changed.

So, if you and your spouse agree on custody and wish to formalize it, DO YOU NEED A SEPARATION AGREEMENT OR A CONSENT ORDER? The answer depends on you and your case. You may ask why everyone does not seek a consent order considering how vastly superior they are to simple Agreements. The main issue is cost, as the filing of a lawsuit incurr’s additional expense, and their is no guarantee when filed that one party will not back out and force the case to actually be litigated. Another reason is you may be every bit as likely to violate the order based on your personality or perhaps some other challenges you have, or their could be several other reasons why it is not a good idea in any particular case. We advise Clients that are dealing with an unreliable spouse or fears the worst for any reason to seek a consent order, however we are happy to provide a top quality Custody Agreement if that is what the Client prefers. The following list of factors can help you decide whether or not a consent order is right of you:

Does your spouse engage in or have a history of substance abuse, (alcohol or drugs)?
Has your spouse engaged in acts of domestic abuse of violence?
Does your Spouse have any issues with their mental health?
Does your spouse have immediate family in another state or country(or are they likely to move) ?
Does your spouse lie regularly or change their minds often?
Is your spouse unpredictable or inconsiderate with the kids or your schedule?
Does your spouse try to dictate to you or dominate you in any way?
Do you and your spouse have any major differences with regard to raising the kids, ie religion, school preferences, etc?
Are you willing to trust your spouse to keep the terms of the agreement?
Does your spouse engage in alienating behavior with the kids?
Is your spouse a good parent with good parenting skills?
Do you want the authority of the law via a Court Order backing up the terms of the agreement?
Do you fall into any of the above categories?

As you can see, the issue boils down to whether or not you can or should anticipate problems with your spouse. Even if you do not currently have such issues with the other party, things may change, especially when other romantic interests enter the situation. Permanent custody orders are also difficult to change, and this may or may not be a good thing for you depending on your circumstances. If you anticipate the possiblity of wanting to move or perhaps get married soon, your attorney needs to know that, so that the order is drafted properly.

Additioanlly, the Consent Order will preserve jurisdiction for the issuing state (North Carolina) pursuant to the Uniform Child Custody Jurisdiction Enforcement Act, at least long enough to prosecute a custody claim. This can help avoid the problem of the other parent filing a case in a far away county or state later to determine or change custody.

Do You Need a Child Custody Lawyer in the Raleigh Area?

Child Custody

Legal Services

Raleigh Law Office

Knightdale Law Office

Featured Legal Blogs