Custody and support

Thanks for your inquiry and nice comment about Rosen Law Firm. Sorry for the delay in responding.

You are correct, establishing child support numbers do not require the issue you described to be settled. Child support is determined according to the NC guidelines as you suggest. However, it is not uncommon for the judge to want to hear a pending motion regarding a custody matter prior to determining whether child support will be modified. The judge will not allow the case to be continued for too long. Your attorney will be able to bring the matter before the Court if it looks like the other side is just stalling. Once the custody matter is resoloved and the Judge puts child support back on the docket, the Child support office will be able to help more effectively.

Deborah M. Throm
Rosen Law Firm
1829 E. Franklin Street, Bldg. 600
Chapel Hill, NC 27514
919.265.0017 direct
919.321.0780 main voice

4101 Lake Boone Trail
Suite 500
Raleigh, NC 27607
919.256.1544 direct
919.787.6668 main voice

301 McCullough Drive
Suite 510
Charlotte, NC 28262
704.644.2531 ext. 100

Thank you for your time and consideration.

Janet, I’m glad to see you back, and hope you are doing well.

Can you help navigate us through how a motion to modify custody works? Once a motion is filed, doesn’t mediation have to take place? We received a motion from my stepson’s mother, but there’s no mention of mediation.

If mediation isn’t required, how long do you think before a court date is set? My stepson turns 18 in 10 months. He lives with us right now, and the only reason we haven’t submitted a motion to modify first is because our attorney advised us not to, it would take “too long”, and he would probably age out before the case is ever heard. What bearing will this motion have on our chid support case next week? The case has already been continued once, because she filed show cause(that has never been heard, or dismissed)BEFORE the original child support hearing and the judge wouldn’t hear the case with a pending motion. Now we’re in the same boat. She files another motion a week before the hearing. Seems like she can just keep delaying her obligation to her son by filing worthless and unfounded motions that she never intends to follow through with, but they remain open on the court files, so the judge sees this as a pending motion, and won’t hear the child support case.

Since we’re trying to control costs, our attorney is not the one dealing with the child support case, we have filed with child support enforcement. If it was our attorney, I’m sure she would point out the obvious link of motions/delay to the judge, but CSE seems to be pretty textbook and just says “ok” when it’s so obvious what she and her attorney are doing. Is there anything we can do?

Thanks so much for your help.

Dear newwife:

Greetings. Yes, mediation must occur and if you file the motion, you must set it yourself in Wake County.

I would usually agree on a 17 year old. Child support is another issue altogether.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.

My stepson moved in with us over 8 months ago. His mother has seen him approximately 7 or 8 times, and he has only spent the night with her twice. We have tried to get him to spend more time with her, but honestly, she doesn’t seem that interested unless it’s the 50/50 that the current consent order implies. Truthfully, since this order went into place three years ago, it has never been 50/50, as my stepson has spent approximately 80% of his time in our home. My stepdaughter also moved in at the same time, just days after turning 18. There’s alot more to the story - but I don’t want to bore you, so I’ll stick to the facts.

Their mother will not contribute to their support in any way. We know there’s nothing we can do about the 18 yr old, but my husband feels strongly that she needs to support her son, just as he did all the years that she had sole custody.

He filed with child support enforcement in June. Papers were filed and a court date was set in September (for November). Surprise, the next day she files a motion to show cause accusing my husband of being in contempt of the order and estranging son from her. The hearing was continued, because she hired a lawyer at the last minute and even her lawyer told her she didn’t stand a chance, that the order was worded to allow the son to be where he wanted. Our attorney agreed to a continuance on the condition that she submit a proposal to modify custody closer to the actual situation. This has not happened. The problem is that now, because there’s a pending motion, the child support judge would not hear the child support case. He expects the custody to be worked out before the continuance date. This isn’t going to happen. She just keeps stalling, and will do so until son reaches age of majority (1-1/2 years away), even our lawyer has advised us to just let him “age out”.

The NC CS guidelines are worded “A parent (or third party) has primary physical custody of a child if the child lives with that parent (or custodian) for at least 242 nights during the year. Primary physical custody is determined without regard to whether a parent has primary, shared, or joint legal custody of a child.” Doesn’t this say, that regardless of what the order says - physical overnights is what determines support obligation? So, why would the judge refuse to even hear the case when we have documentation that he has lived with us well over the 242 nights, and my husband has been solely responsible for his support? What can we do, prior to going back for the continuance, to ensure that the case is treated appropriately. The CSE officer does not seem to be much help, and has mislead my husband several times already. He acts like it’s all just a cakewalk - but in court, he did not even speak to present the case.

Sorry for the long post. Thanks for any advice you can give. Rosen continues to be a wonderful support to the community.