FAMILY/CHILD CUSTODY

Family/Child Custody Attorney in Gastonia

Child Custody & Visitation Rights

Nothing is more important than the custody and visitation with a child following separation. The court may award custody to one or more parties who are fit and proper persons to have custody of a child. When both parents are fit and proper, the court must conduct a best interest of the child analysis to determine which parent would be the better custodian of the child, based upon a number of factors. In certain cases, the court will decide both parents are fit and are therefore entitled to joint custody. Parents who are joint custodians must consult with each other and agree on all major decisions affecting a child's welfare.

Natural parents have a paramount right to the custody of their child in a custody contest with a non-parent, unless the natural parent has engaged in conduct that waives their right.

Visitation is simply a lesser degree of custody. The noncustodial parent will generally be granted visitation rights with a child when visitation is in the best interests of the child. The times and conditions of visitation will be dictated by the circumstances of a case, but generally a noncustodial parent will have alternate weekend visitation, holiday visitation, and vacation time during the summer months.

A party seeking custody of a minor child will not be entitled to a temporary order (often termed an ex parte order) changing the living arrangements of a minor child unless there is evidence that there is a substantial risk of physical harm to the child, that the child may be the subject of sexual molestation, or that a parent is about to leave the jurisdiction of the court with the child.

Grandparent Rights

When a parent is unfit or has acted in a manner that is inconsistent with his or her paramount parental right to custody, a grandparent who has a parent-child type relationship with a grandchild may bring a suit for custody of a grandchild.

There are four different North Carolina laws that empower grandparents to request visitation rights in different circumstances.

1. The most general of these laws allows grandparents to sue just like any other third party for custody; however, this law has been limited by North Carolina appellate cases;

Grandfather Giving Granddaughter Ride on Shoulders — Gastonia, NC — Lloyd T. Kelso, Attorney at Law

2. A second law provides that an order for custody of a minor child may provide visitation for any grandparent of the child as the court, in its discretion, deems appropriate. "Grandparent" includes a biological grandparent of a child adopted by a stepparent or relative of the child where a substantial relationship existed between the grandparent and the chld. But under no circumstances will a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights. So when custody is at issue in an ongoing proceeding the grandparents have the right to sue for visitation. This is usually accomplished by a motion to intervene in an ongoing case between biological parents.

3. A third law allows grandparents to make a motion for custody or visitation after the custody of a child has been determined. "Grandparent" includes a biological grandparent of a child adopted by a stepparent or a relative of the child. But the same rule stated above applies with respect to adoptive parents unrelated to the child.

4. A fourth law allows grandparents of a minor child who has been adopted by a stepparent or a relative of the child to institute an action for visitation where a substantial relationship exists between the grandparent and the child. Again, the same rule stated above applies with respect to adoptive parents unrelated to the child.

Protecting Children

It is important to protect children who have experienced the separation of their parents. We ask that our clients not make make the following Serious Parenting Errors in the midst of a separation or divorce:

  • Do not denigrate (talk badly about) the other parent or his or her family
  • Do not you use the phone, fax, text messaging, or e-mails as a barricade in your communication with the other parent
  • Do not make your child compartmentalize his or her life
  • Do not compete against the other parent for your child’s affection
  • Do not align other people against the other parent
  • Do not expose your child to adult issues. For instance, do not talk about your legal case with your child
  • Have not introduce your child to a new love interest too soon 

Most good parents approach the painful issue of separation and divorce with the best of intentions. Parents often pledge to shield their child from adult concerns, safeguard their child’s tender feelings, and meet his or her emotional needs. Parents mean it when they say it, but legal proceedings can and will test their resolve. In the real world of conflict during a custody dispute between parents, parents experience loss of time from work, financial woes, extreme stress, and concern about the unknown outcome of their case. It is the perfect environment for anger and resentment. The person who often suffers the most is the one that both parties love the most -- their child.

In helping determine what is in the best interest of your child or children, Mr. Kelso has personally experienced raising children and step-children following divorce. He has also spent many years counseling and helping to resolve conflict between parents who are experiencing family difficulties. He has interviewed hundreds of parents going through the separation and divorce experience. It is often difficult for parents to gain a child's perspective on the separation or divorce. Parents are in many cases self-centered and living in denial of their child's feelings. Each parent wants as much time with the child as possible to the exclusion of the other parent. Each parent denies or fails to see what effect their lack of a child's perspective may have on their child's feelings. Children often feel compartmentalized -- feeling like they have no home or that they live in two different homes. As they grow, they feel they must live dual lives, a life with mom and a life with dad. It is hard for adults to imagine how difficult this really is. They are often required to keep secrets of what goes on at mom's house and what goes on at dad's house. The courts, in making shared or joint custody arrangements, often contribute to the compartmentalization of the children. Each parent is given a 100% independent life, but each child now has to divide life, sometimes about 50% with mom and 50% with dad. The child or children often feel confusion and a total lack of unity on any issue that arises between parents.

If parents are going to successfully raise children of divorce, they must be willing to shift their adult perspectives to what is in the best interests of the children. Mr. Kelso often asks the parent to take a child's eye view of their situation. If they can, they need to see the separation and divorce throught their child's eyes. A parent must see what is at stake in the shift from one household to two. A parent must identify basic parental styles and how they affect the way the parents will handle the children. Mr. Kelso will help provide a succinct overview of the legal system to help a parent find the safest way through, with suggestions for working with attorneys and dealing with courts and hearings.

Just because you have had difficulty with children during divorce does not necessarily make a bad parent. Even loving, well-intentioned parents lose perspective in the emotional turbulence of separation and divorce. It is always the children who pay the highest price. But separation, divorce, and resolving child custody need not wreck everyone’s lives. There are ways to minimize the grief, anxiety, frustration, anger, and dissipation of resources. If you know what to avoid and if you take the positive steps Mr. Kelso can recommend, you can spare your child and yourself an enormous amount of suffering. If you love your child, you can act in the best interest of your child.

Termination of Parental Rights

Termination of parental rights is one of the most serious proceeding in family law. It is sometimes referred to as the "death penalty" of family law because of the serious effect the court’s decision has on the parent-child relationship. Indeed, all of the rights that exist by virtue of that relationship hang in the balance. Because so much is at stake, the legislature and the courts have reserved termination of parental rights for the most heinous parental misconduct, or where a parent knowingly and voluntarily has agreed to relinquish her or his parental rights. Termination of parental rights is most often sought in the context where a parent has abandoned, abused, failed to support, or neglected a child, or where a parent has voluntarily cut-off a relationship with a child and a stepparent has a desire to adopt the child. Where a parent has demonstrated over time that he or she will not provide the degree of care and support that will promote the healthy and orderly physical and emotional well-being of a child, it is generally in the best interests of the child for someone on the child’s behalf to employ the procedure for terminating the legal relationship between that parent and the child. Hopefully, termination of parental rights will be the first step in the process of providing a healthy and orderly plan of care for the child. In many cases, a plan of care is usually established through foster parents or adoption. Once a termination of parental rights order has been entered, the former parent has no legal rights to direct or control the child’s future in any way.

Grounds:

In North Carolina there are ten statutorily established grounds for termination of parental rights. The court may terminate the parental rights upon a finding of one or more of the following:

1. The parent has abused or neglected the child. The child shall be deemed to be abused or neglected if the court finds the child to be an abused child or a neglected child;

2. The parent has willfully left the child in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the child. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the child on account of their poverty;

3. The child has been placed in the custody of a county department of social services, a licensed child-placing agency, a child-caring institution, or a foster home, and the parent, for a continuous period of six months next preceding the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the child although physically and financially able to do so;

4. One parent has been awarded custody of the child by judicial decree or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition or motion willfully failed without justification to pay for the care, support, and education of the child, as required by said decree or custody agreement;

5. The father of a child born out of wedlock has not, prior to the filing of a petition or motion to terminate parental rights:

a. Established paternity judicially or by affidavit which has been filed in a central registry maintained by the Department of Health and Human Services; provided, the court shall inquire of the Department of Health and Human Services as to whether such an affidavit has been so filed and shall incorporate into the case record the Department's certified reply; or,

b. Legitimated the child or filed a petition for this specific purpose; or,

c. Legitimated the child by marriage to the mother of the child; or,

d. Provided substantial financial support or consistent care with respect to the child and mother;

6. That the parent is incapable of providing for the proper care and supervision of the child, such that the child is a dependent child, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the child and the parent lacks an appropriate alternative child care arrangement;

7. The parent has willfully abandoned the child for at least six consecutive months immediately preceding the filing of the petition or motion, or the parent has voluntarily abandoned an infant for at least 60 consecutive days immediately preceding the filing of the petition or motion;

8. The parent has committed murder or voluntary manslaughter of another child of the parent or other child residing in the home; has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child, another child of the parent, or other child residing in the home; has committed a felony assault that results in serious bodily injury to the child, another child of the parent, or other child residing in the home; or has committed murder or voluntary manslaughter of the other parent of the child. The petitioner has the burden of proving any of these offenses in the termination of parental rights hearing by (i) proving the elements of the offense or (ii) offering proof that a court of competent jurisdiction has convicted the parent of the offense, whether or not the conviction was by way of a jury verdict or any kind of plea. If the parent has committed the murder or voluntary manslaughter of the other parent of the child, the court shall consider whether the murder or voluntary manslaughter was committed in self-defense or in the defense of others, or whether there was substantial evidence of other justification;

9. The parental rights of the parent with respect to another child of the parent have been terminated involuntarily by a court of competent jurisdiction and the parent lacks the ability or willingness to establish a safe home; and,

10. Where the child has been relinquished to a county department of social services or a licensed child-placing agency for the purpose of adoption or placed with a prospective adoptive parent for adoption; the consent or relinquishment to adoption by the parent has become irrevocable except upon a showing of fraud, duress, or other circumstance; termination of parental rights is a condition precedent to adoption in the jurisdiction where the adoption proceeding is to be filed; and the parent does not contest the termination of parental rights.

The party seeking termination must prove the case by clear and convincing evidence. Even if grounds are established, the court must still decide that termination of parental rights is in the best interest of the minor child.

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