At least from a glance, I would think a visitation order would be entirely moot if the parties are living (if not in some semblance of amicably) together, and if there is joint custody (either via the ex parte order, or replacing it), a custody order would also be moot.

Since courts usually lack subject-matter jurisdiction over moot issues, with very few exceptions (and only in the appellate courts), that’s why the judge is saying he lacks jurisdiction.

You might be able to recover legal fees from your spouse (or ask for other concessions in your separation), but I don’t know the rules on that.

The judge had authority when he entered the order based on the facts that were presented during the hearing, did you notify the Judge at the hearing that you had not actually separated.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

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Chapel Hill, NC 27514
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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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

Yes! One of the reasons that the Emergency Ex Parte was dismissed is because my husband allowed me to move back in the marital home and I was the primary caregiver for the children while we waited for the hearing.
My husband thought that I would move out after the Ex Parte was dismissed but I have no intention of leaving him. He is the one who wants a divorce. He also wants to have no alimony and no child support. He suggested that we have 50/50custody with the children being in my care during the day and in his care at night; since custody is calculated on nights, I would owe him child support! My husband testified at the hearing that he “forced” me to tell him that I was laving him. This is a domestic abuse situation and I would go to a women’s shelter but I have been told that the physical abuse would be hard for me to prove. I have been to the emergency room six times last year.
My attorney filed a countersuit on the day of our hearing but the judge refused to hear it that day.

While I was on a business trip, my sister provided childcare. When my trip was extended, my husband confronted me and asked if I was divorcing him. I was not but he has been pressing me for the entire 7 years of our marriage for a divorce. I recommended that we write a separation agreement and he picked up the children from my sister while I made the arrangements for a mediated settlement.

To make a long story short, my spouse obtained an Emergency Ex Parte order and we went to a hearing in which that order was dismissed. The judge assumed that I had left the marital home and ruled in regards to the visitation/custody program. I did not leave the marital home and my spouse and I have been living together even before the hearing to dismiss the Ex Parte.

We have had to call the same judge to arrange for a visit to my family and now he is claiming that because I reside in the marital home with my spouse that he may not have jurisdiction. My spouse and I have been disputing the custody order on a daily basis through our legal counsel. The bill is huge. If in fact this judge overstepped his jurisdiction, do we have a case in which we could sue for our legal fees?