Divorce Differently |
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After divorce, the idea of a “fresh start” can be enticing. You may want to move away and start a new chapter of your life where no one knows you as your former spouse’s wife or husband. For a child, however, relocating to a new place can be difficult. Moving uproots a child from the home that they know, their school, and their friends. If you share a child with your former spouse, it is unlikely that you can relocate out-of-state easily with your child, even if you are the primary custodian of the child. Even if you do not have a custody agreement in place, if you share parenting time with a co-parent, it is not wise to move out-of-state without getting your co-parent’s consent or the court’s permission first. A court cannot tell you where to live and as an adult, you have the right to relocate, but that does not mean you can bring your child along with you in every circumstance.
Relocation with a Custody Order in place If you already have a child custody order in place, that is the first place you need to look to determine what is necessary if you want to relocate with your child. Many custody orders will specifically address relocation. Some custody orders explicitly state a geographic limit on how far you can move from the child’s hometown or a specific amount of notice you are required to give your co-parent before a relocation. For instance, your custody order may state that you do not need consent to move within the surrounding counties of your town. If your planned relocation is within that geographic limit, then you don’t need consent from your co-parent to relocate! You would just need to give your co-parent the required amount of notice prior to your relocation, per your custody order terms. If your custody order requires you to give your co-parent notice or receive consent to relocate, you need to consult with your co-parent about the relocation. Explain the reasons behind your relocation plan. Discuss a feasible plan for a new physical custody schedule or how you will maintain the current physical custody schedule. Consider how the child will be transported back and forth for the other parent’s parenting time and who will pay for any additional travel expenses (if you are making the choice to relocate, this additional cost may be something you take on). If you can get on the same page with your co-parent about relocation, you have the freedom to modify your custody arrangement as you see fit. If you and your co-parent agree on a new physical custody schedule and you need to modify your Consent Order for Child Custody, reach out to us to help with that process. Return to Court, if necessary If you notify your co-parent of your intention to relocate with your child and your co-parent does not give you consent, then you can file a motion or lawsuit with the court requesting to relocate. If granted, a new court order would be entered by the court. It is not a good idea to relocate with your child without getting the court’s permission if your co-parent does not consent. You could be in violation of your custody order and could be held in contempt of court, ordered to pay a fine, or even serve jail time. It could also hurt your own case later, as most judges do not want to see parents absconding across state lines with a child. If you relocate without permission of your co-parent or the court, that action will serve as evidence that you are not prioritizing your child’s relationship with the other parent and can negatively impact you. Additionally, your co-parent could file for and receive an emergency custody order for your child, which would result in you being forced to return the child to his or her home state. Challenging your co-parent’s proposed relocation If you are not the primary custodial parent, your co-parent plans a relocation and you disagree, you should of course first engage in a good faith discussion with your co-parent about why you oppose the relocation. If discussions fall flat, you can challenge the relocation in court. You would need to show the court that the proposed relocation is not in the child’s best interests. If the move will necessitate a change to the child’s school, remove accessibility to the child’s close family members who all live in the area and support the child, if the child has unique educational or sports opportunities in the area and would lose out on those opportunities if they relocated, or if the child moving would prevent a continued relationship with a parent for lack of resources to pay for travel or any other reason, the judge might find that the relocation is not in the child’s best interest. These are just examples and not the only considerations a judge might make in determining if a relocation is in a child’s best interest. What does a court consider in a relocation case? The court must consider all relevant factors in a parent’s request to relocate with a child. Most notably, your reasons for the relocation and whether the relocation is in the best interest of the child. You will need to prove to the court that the advantages of the move will outweigh any potential negative impact the move might have on a child. Factors the court may consider in North Carolina relocation cases are as follows:
Relocation with no Custody Order in place Again, it is not wise to relocate out-of-state without the other parent’s written permission. Seek your co-parent’s consent in writing first. If your co-parent will not agree to your relocation with the child, then you can file a motion or lawsuit requesting the court’s permission to relocate with the child. If you are considering relocating or your co-parent has brought up a proposed location, please reach out to our office. We can help you understand your options in a proposed relocation as it applies to your unique circumstances. Arbitration is an alternative dispute resolution method that allows for parties to have their family law issues resolved without going to court.
North Carolina’s Family Law Arbitration Act (N.C.G.S. 50-41) allows couples to choose to arbitrate any or all issues arising from a separation or divorce, except for divorce itself. This can include any or all of the following issues: Equitable Distribution, Alimony, Child Support, or Child Custody. Arbitration is not a mandatory requirement and is something that the parties must mutually agree to before submitting an issue to an arbitrator. The parties agree to submit an issue or issues to a neutral third-party arbitrator, who acts almost like a private judge by hearing evidence and providing a binding or non-binding decision. The parties typically share the cost of the arbitrator unless their agreement allows the arbitrator to allocate the costs differently. South Carolina has not adopted a family-law specific arbitration act like North Carolina, but parties may mutually agree to utilize arbitration as an alternative dispute resolution for property and alimony issues under the Uniform Arbitration Act, which South Carolina has adopted. South Carolina case law has held that it is not permissible to submit child custody and child support issues to binding arbitration with no right to judicial review. Child custody and child support issues may (or, when there is a lawsuit pending, must) be submitted to mediation as an alternative dispute resolution prior to trial. In South Carolina, arbitrators can be certified by South Carolina’s Board of Arbitrator and Mediator Certification, but parties can choose an arbitrator who is not certified by the Board. All arbitrators must follow the Alternative Dispute Resolutions Court Rules and the Code of Ethics for Arbitrators that South Carolina has adopted. Arbitration Process In arbitration, parties have a private trial in front of an arbitrator who issues a binding or non-binding decision that the parties must then follow. Similar to a trial in front of a judge, the parties present documentary evidence and testimony, and then the arbitrator (instead of a judge) issues a decision. An arbitrator can issue subpoenas for witnesses to appear and for production of documents or records needed. The arbitrator administers oaths for witnesses to testify and can take depositions, if needed. You can and should be represented by the attorney of your choosing during arbitration. Benefits of Arbitration
Disadvantages of Arbitration
If you are interested in arbitration or other alternative dispute resolution mechanisms, please reach out to our office. As a firm, we focus on out-of-court resolutions for our clients and arbitration is a great option for many clients. Lindsey is available and qualified to mediate or arbitrate your case in North Carolina or South Carolina. It’s May and there are 107 different children’s activities, graduations, spirit days, field days, and end-of-grade testing before you and your kids finally reach the glorious freedom of summer! Except now that the kids are out of school, you and your co-parent’s parenting time schedules will adjust to the “summer schedule” and you’ll need to make some modifications to continue successfully co-parenting over the summer.
Summer Parenting Time Arrangements Physical custody of children is typically divided into two separate categories in a custody agreement or order: (1) “Regular Parenting Time” and (2) “Holiday Parenting Time.” Summer vacation falls into the Holiday Parenting Time category which typically supersedes the Regular Parenting Time schedule. You and your co-parent will look to the custody agreement’s summer parenting time terms to determine what the parenting time schedule will be for the 9-12 weeks of summer until your kids go back to school in the fall. Summer parenting time schedules vary depending upon your specific family situation. Some summer parenting time schedules we frequently see are as follows:
Choice of Summer Vacation Weeks, if applicable For summer vacation and summer camp planning, most custody agreements have a designated date by which each parent must notify the other of the summer vacation weeks he or she has chosen (typically February 1 or March 1). Check your custody agreement to make sure you have informed your co-parent of your chosen vacation weeks by the designated date. Co-parents typically agree that they will not choose weeks for vacation during which the children have prearranged camps or other special activities that the parents have already agreed upon and arranged. If there is a disagreement between co-parents regarding choice of weeks for summer vacation, usually custody agreements will indicate that one parent’s choice will prevail in odd-numbered years and the other parent’s choice will prevail in even-numbered years. Communication about Summer Vacation Nearly every custody agreement requires that parents communicate travel itineraries (like flight information), emergency location information, and phone numbers prior to traveling out of town with the children. Make sure to keep your co-parent up to date with that information. If the shoe was on the other foot (and it will be!), you would want to know where the kids were staying and their general itinerary, as well. Treat your co-parent with kindness and courtesy by providing the kids’ travel information without being asked. The most important part of scheduling summer parenting time, vacations, and summer camps with your co-parent is to keep the lines of communication open. There will inevitably be unexpected minor adjustments in transporting the children, summer camp drop-off and pick-up times, and the parenting time schedule due to the difference in structure of summertime childcare and potential travel delays that could occur. Remember to keep your focus on what’s best for the kids and how you and your co-parent can work together to cover your kids’ needs over the summer. Make sure to schedule in fun time, too! If all of this sounds confusing and you aren’t sure how to interpret the custody agreement you already have, or you need a custody agreement put in place that defines summer parenting time, please reach out to our office to schedule a consultation. Don’t miss the first four parts in this series of checklists helping you address the logistics, accounts, finances, online presence, and healthcare changes that may need to be completed upon separation and divorce. Today is our final installment of the divorce checklist, addressing the logistics surrounding the most important and precious part of your marriage: your children. This list is sparse because children are not logistics, and their needs throughout the divorce process cannot be quantified in a tidy checklist. The to-do items that you can address relating to your children are below.
Be sure to go back and review our first two posts in this three-part series on stay-at-home parents and what to expect upon separation and divorce financially. Today's post will address child custody and child support.
Child Custody Being a stay-at-home parent and/or the primary parent during the marriage does not necessarily mean that you will continue to be the primary parent for child custody upon separation. Your co-parent and spouse will inevitably step up and do more active parenting than they did during the marriage because they will no longer have the support of a stay-at-home parent. It can be difficult to let go of the primary parent role as a former stay-at-home parent, but it can only benefit your children to have two engaged, active parents contributing to their lives. The standard for determining child custody in court is what is in the best interests of the children. If you are resolving child custody outside of court, that best interest determination will remain the most important consideration in reaching a child custody agreement. Often, equally sharing physical custody of the children after separation is a great option for kids and families (i.e., alternating full weeks with each parent). However, if one parent has a more demanding job that doesn’t allow for a traditional week on/week off shared parenting arrangement, there are certainly alternatives. Perhaps the parent with the demanding job can accommodate a longer weekend of parenting time from Thursday to Sunday or a mid-week overnight for the kids. Child custody arrangements and schedules are not one-size-fits-all, and you and your spouse can discuss and agree on what will be the best custody schedule for the children and your family long-term. Our firm can educate you on options for child custody schedules if you aren’t sure what would be best for your family. Child Support If upon separation, you are still a stay-at-home parent with primary physical custody of the children and/or you are earning significantly less income than your spouse, your spouse will be required to pay child support to you. When you have children, both parents have a duty to support their children financially whether those children live with you 100% of the time or 0% of the time. Both parents have a responsibility to put a roof over their heads, clothes on their backs, food in their bellies (even if they won’t eat the broccoli you make!), pay for their health insurance and medical care, provide or pay for childcare, and provide for any other necessities. To learn more about the basics of child support in North Carolina or South Carolina, please refer to our past blog post by clicking this link. Please reach out to our firm to schedule a consultation if you are a stay-at-home parent and need guidance on your child custody schedule and child support obligation. We are very familiar with supporting stay-at-home parents through this transition and can help you, too. This is the second of a two-part series about parenting time refusal. Please read the first part of the series to understand the reasoning behind why many children are resistant to a new custody arrangement and then return here to find out what you can do about parenting time refusal within the confines of the law and with respect to your child and your co-parent.
Do I have to require my child to see his or her parent? Many parents ask if they must “force” their child to visit with the other parent. If you are using the word “force,” I would suggest that you reframe your thought-process around your child’s time with the other parent. “Force” suggests that you don’t want to require the child to go with the other parent or that you are supportive of the child’s refusal to see the other parent. As a primary parent, you need to support your child’s relationship with your co-parent. Your child benefits from both parents’ involvement and engagement in his or her life. If there is a formal custody order (either a Consent Order entered into by the parties and then signed by a judge or a custody order entered following a custody hearing or trial), then yes, you need to require your child to see the other parent and make all attempts to follow the custody order. Refusing to do so is a violation of a court order and you could be held in contempt of court for failing to follow it. If there are no concerns for your child’s safety while they are with the other parent, you should encourage your child to enjoy their time with the other parent, bringing up positive attributes of the other parent, and casting your child’s time with the other parent in a positive light. Think about parenting time like you do other mandatory events. Your child must go to school, and they also must go to see the other parent. Does your child always want to go to school? No, but you require them to attend. Similarly, your child might not always want to go to the other parent, but they need to and must go. Should I require my child to spend time with me? As a parent, you must weigh the options and decide if requiring your child to come to spend time with you is worth the potential fallout. If the primary parent is a co-parenting advocate and your child is on the younger side, then generally, I would advise that you continue requiring your child to spend time with you. Your child will benefit from having a relationship with both parents and it is usually best for the child to continue having time with you. If a child is a teenager, you must consider the impact of requiring parenting time on your long-term relationship with your child. Forcing parenting time upon an older teenager may not be worth the negative impact it will have on your long-term relationship. Consider engaging in family therapy sessions with your resistant child. Listen to the therapist on how to engage and support your child through this rough patch. If you play the long game with your kids, keep showing up, supporting, and loving them through this minor hiccup in your parent-child relationship, usually they will come around. How old does a child have to be to refuse to see a parent? There is no set age in North Carolina or South Carolina when a child is permitted to decide whether or not they spend time with either parent. What do I do if visitation is truly harming my child? If there is concern for abuse, you should contact law enforcement or the Department of Social Services (“DSS”) and make a report. This should only be done if there is a true, major concern of abuse. Including law enforcement or DSS in your family members' lives is not something to do lightly and definitely not something to be used as a manipulative tool to stop parenting time with the other parent. If there is any concern of abuse, immediately connect your child with a qualified therapist. Separation and divorce are tough on the adults involved, so be kind and understanding that it is also difficult for your children. Your children are less equipped with the ability to regulate their emotions and process them. They may blame one parent or struggle with the transition between households. If you need help navigating this process, reach out to our office and connect you or your child with a qualified therapist. If you are unsure how to navigate this challenge in your parenting time schedule, please reach out to us to schedule a consultation. Your child doesn’t want to go to the other parent’s house, and you don’t know what to do. Thoughts run through your head about what to do, but before you start to spiral, let me walk you through some reasons why a child might not want to go with their other parent. The majority of the reasons why a child doesn’t want to transition to the other parent are normal, innocuous, and expected. Keep your emotions in check and try not to jump to negative conclusions about the other parent.
Resistance to Change Kids thrive on familiar routines and going to a new home is a new routine that requires adjustment. It may not be that your child doesn’t want to see and spend time with their other parent, but that the child is struggling with the new routine that is out of his or her norm. Give your child, yourself, and your co-parent grace through this transition and give everyone time to adjust to the new normal. Separation Anxiety Kids naturally want to show you that they love you and are bonded with you, and they do this by avoiding separation from you. Have you ever had to drop your child off at daycare or school and they cry and pitch a fit? Later, you hear from their teacher that they recovered within a minute or two of you walking out the door. This may be what is happening during parenting time transitions, as well. You only get to see the hard part of separation and don’t get the benefit of seeing them recover quickly and move on to enjoying parenting time with the other parent. Child’s Preference Is the other parent stricter than you? Does the other parent limit screen time to a greater extent? Maybe your co-parent’s parenting style differs from yours? Every parent must make choices about how to make it through each day with a child, where to use screen time as a tool for your own productivity, which battles you will pick, and which boundaries you will hold. Perhaps you are the primary parent who needs screens to entertain your child while you make dinner, prepare for the next day, or finish up a work call, but your co-parent has limited time with the kids so they don’t allow screens during their parenting time. Your child may just want to stay with you because you give them more freedom! Parent’s Anxiety Are you anxious about your child going to the other parent’s house? Do you constantly worry about your child when they are with your co-parent? Do you ask your child a barrage of questions when they return from their other parent’s house? Children are incredibly intuitive, and your child may sense and absorb your anxiety about the transition. Try to avoid allowing your child to see your anxiety. Keep your questions light after they return from the other parent’s house. Do not grill your child about every moment of their time with your co-parent. Keep your own worries to yourself as much as possible. If you need help managing your own anxiety, connect with a qualified therapist to help you. The transitions will become easier for you as the custody schedule becomes second-nature. Parental Alienation In your custody agreement or order, there are likely rules that each parent must follow regarding treatment of their child’s relationship with the other parent. Most custody agreements require that neither parent speak negatively about the other parent in front of the child, nor let the child remain in the presence of others doing so; that neither parent estrange the child from the other parent or impair the natural love and affection between the other parent and a child; and that the parents must encourage and foster a sincere respect and affection for both parents. “Parental alienation” occurs a when a parent consistently and systematically turns a child away from their other parent and sours the relationship between the child and their other parent. This can happen when a parent speaks negatively about the other parent in front of the child, encourages a child to be angry at the other parent about the situation, or guilt trips a child for wanting to see their other parent. If your child is acting resistant to going to the other parent’s house, you may want to examine your own actions with great care. Are you making snide comments about your co-parent in front of the child? Do you act hurt or sad when your child spends time with the other parent or expresses a desire to do so? All of these actions by a parent can cause a child to resistant spending time with their other parent and may fall within the definition of parental alienation. Connect your child with a therapist to help them cope with the new norm and empower them during this difficult transition. If you need recommendations for great child therapists, please reach out to your family law attorney for referrals. Our office frequently helps connect families and children with the support they need to weather this tough time. If you need direction on how to handle this challenge, please reach out to our office to schedule a consultation. Who will get the kids?
An agreement between parents is always preferable to going to court and having a judge determine your custody arrangement. In an agreement, you and your spouse maintain control over exactly what your custody arrangement looks like and can consider any factors that affect your children’s best interests (like each of the parents’ work schedules, schooling arrangements, extracurricular activities, locations of each of the parents’ homes, the children’s ages and wishes, and so forth). Until there is a custody agreement between the parents, each parent has equal rights to custodial time with the children of the marriage. When can my child choose the parent with whom they wish to reside? There is no set age when children get to “choose” their custodial parent. The focus in determining a child custody agreement is what is in the best interest of the child. An older child or teenager’s wishes should be given considerable weight when determining a child custody arrangement with your spouse or the other parent. Teenagers who have their own lives including jobs and extracurricular activities and are able to drive are unlikely to follow a child custody arrangement with which they disagree. Forcing a teen to follow a custody arrangement with which they disagree is likely to cause more harm than good in your relationship with the child. A younger child’s wishes should be considered, but generally should not be determinative. Children often tell both parents they want to live with them. This is typically because children often wish they could have their “old life” back, living with both parents like they used to when their parents were together, and also because children want to please their parents, particularly in times of perceived stress and anxiety. Is there a custodial preference for mothers over fathers? No, there is not a custodial preference for mothers over fathers in North or South Carolina. Until a judge orders otherwise, or the parents agree otherwise, two married parents who are separating have equal rights to custody of their children. We have seen that children benefit from strong relationships with both of their parents. An experienced family law attorney can provide ample guidance to parents questioning what schedule might be in the best interests of their children, as there are many variations of parenting time schedules. The best schedule is the one that works well for your own family. If parents share custody, does anyone pay child support? It depends. The Child Support Guidelines in both North Carolina and South Carolina determine if and how much child support should be paid. The child support obligations are loosely based upon how many nights per year a child spends with each parent. In North Carolina, for example, child support for shared custody is determined by using the Child Support Guidelines “Worksheet B.” If parents share custody of the children equally, you enter in the following information on Worksheet B to determine if child support is owed:
Can I move? Yes, you are legally able to move wherever you would like. If you have children, however, you may not have the legal right to bring them with you when you move. If there is no custody order or agreement in place, each parent has equal legal rights to the children. If you are separated and want to move the children out-of-state or far away from the other parent, you must inform the other parent and get their approval to take the kids with you. If the other parent does not agree and you move with the children anyway, the other parent could file for an emergency, expedited, or temporary order in court which could force you to bring the children back to their home state. If you move with the children and do not inform the other parent of the children’s whereabouts, the legal consequences could be dire. Courts take a parent’s constitutional right to parent his or her children very seriously and moving without informing the other parent is not likely to provide you with the outcome you desire in your custody case. In most circumstances, it is best for children to have access to and a meaningful relationship with both of their parents. Moving children far away from one of their parents can have major legal and emotional consequences for you and for the children. Consult with an attorney for more information and guidance on your specific custody situation, as we understand these situations are nuanced and complicated. What do you want your child’s divorce story to be? Ending an unhappy union through a divorce can sometimes be the best solution for a family. We know divorce affects children, but it does not have to traumatize children or be nasty and contentious. It can be a relief for your children to see both of their parents happier and better-adjusted post-divorce. Your child can have the opportunity to develop a stronger relationship with both parents and their siblings because of divorce. Your divorce approach can impact a generation. What will your child’s lifelong memories be after your divorce? Will your child remember the joy of seeing both of their parents sitting in the same row at their school play? Or will they remember the tension between you and your co-parent as you sat on opposite sides of the theatre and agonizing over which parent to run to first after their play? Will your child remember stressful custody exchanges or special times at both parents’ homes? Keep this in the forefront of your mind as you proceed through your separation and divorce.
A parent is never perfect, but you are the perfect parent for your child. Divorce is a huge transition in a child’s life and there are steps you can take to help your child’s divorce story be a positive one. LOVE YOUR KIDS Love them. That’s simplistic, but it’s truly the best thing you can do. Be present with your child as they experience this major life change. Listen actively if they want to talk; be with them quietly if they don’t. Hug them, check in with them often, and remind them that you love them and will be there if they ever want to talk. Be open to their questions and answer them honestly at an age-appropriate level. Keep in mind as you answer that you protect them from the legal side of the divorce, even if they are older. Explain the new logistics of at whose house they will sleep and when, and who will pick them up from school, but shield them from the intricate details of child custody, child support, alimony, and anything regarding the marital estate. TREAT YOUR CO-PARENT RESPECTFULLY Make your child’s well-being your priority by treating your co-parent with respect and civility. Think of how your child will be affected by your words, thoughts, and actions around the divorce and toward your co-parent. Treat your co-parent with respect for no other reason except that your co-parent is an extension of your child. Be aware of how you speak about your co-parent around your child and only speak positively about your child’s time with your co-parent. Kids will often say they don’t want to go to the other parent’s home, but there can be many reasons for this. Don’t jump to conclusions. Sometimes a child’s hesitance to leave you is just a sign that the child has a healthy attachment to you, like when a child cries at daycare drop-off (and recovers within a minute of you walking out the door). DO NOT RELY ON YOUR CHILDREN FOR EMOTIONAL SUPPORT It is okay to be transparent about your own feelings and emotions throughout the divorce process, but do not rely on your children to support you emotionally. Children should not be the ones comforting you about your adult problems. They should not be taking on your emotional load while trying to manage their own. Find a qualified therapist or talk to family or friends for support. By following this advice, you will let your children maintain their childhood through a divorce and preserve pleasant childhood memories with both of their parents. The divorce story your child will tell in adulthood will be one where their parents were brave enough to make the right decision to move on so they could be better people and better parents post-divorce. You can contact us if you are ready to take that next brave step. |
AuthorLindsey Dasher is the Managing Partner at Dasher Law PLLC Archives
May 2024
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