Legal Custody

North Carolina Divorce Law Divorce and Separation Answers
1

Since you had a working custody/visitation schedule in place for 9 months it’s unlikely that the courts will change that without cause. She will need to show why it is better for the children to be with her primarily instead of keeping to the agreed schedule you had. In any case, parental rights would have to be removed by the court for abuse, neglect…
Do you have pictures from the school functions, programs, another parent or teacher that would be willing to testify that you are there for these events? How is she going to prove that you “never changed a diaper” if you have had the children for every other weekend? That seems a bit of a stretch…
It’s reasonable to expect that if you are not attempting to gain joint custody w/equal time that you will have visitation every other weekend and possibly one night during the week. It’s never too late to become a good parent and unless she can show that there is cause to change the schedule you agreed to in the beginning and have been following, it’s more likely that the court will order that agreement to hold. I could be wrong but I suggest fighting for anything you can get. Go for joint legal and physical custody with equal time…you will have to go to mediation. If you can’t work something out you at least will have the knowledge that you fought for your girls, and can settle for the visitation you have now…

Legal custody is the right to be involved in medical, educational and religious decisions concerning your children. NC defaults to joint legal custody. Physical custody is the daily care and maintenance of your children…meaning who the children are physically with. Your parental rights remain intact regardless of who has legal or physical custody, but you have no real say in anything if you do not maintain joint legal custody.

My suggestion is talking to the ex first, if you can. If you had a working visitation agreement then going to court just out of spite is a waste of time and money, not to mention the emotional stress it takes on both of you. My husband and his ex had an agreement for joint legal and physical custody with equal time, split the cost of everything and he paid her $100 a week. She got greedy and spiteful, took him to court. After they both spent 10K they settled for the same agreement they had previously except that child support is paid to the state $250 per child and he pays insurance. They still have equal time and we still split the cost of everything…though it’s more us paying for stuff than her…

2

Thank you so much for the input, it is very helpful. I guess the issue is that after about 7 months we went to co-parenting counseling that I suggested. After a few sessions she started to grant me an extra night. I had every other weekend, and extra time always. There was one night where the kids were crying and I decided to keep them which added Sunday nights to my weekends with them. Since I had them on Sunday everings, and got them to school ok I didn’t see a problem. Actually she eventually granted to be ok with me keeping them from Friday until Monday mornings. Then she filed stating that the children became whiney because they stayed with me on that Sunday. Is becoming whiney (which is not the case) a reason to take time away?

By the way, she walked out of the co-parenting counseling after three sessions, and later sent me an email (which I saved) that it was because she was to busy with work, wanted her stuff back, and would not attend unless court ordered!! That can’t look in a court right?

Neil Kravis

3

No, being whiney is not a reason to take the children away and the courts will not see it as a reason. A valid reason is that you don’t get the children to school on time or at all. A valid reason would be that you do not feed the children while they are with you. A valid reason would be that you behavior had reverted back to previous problems and it was apparent that you were not capable of caring for the children during visitation.
No, her reasoning behind not attending counseling will not look good to the courts. You should ask for any information that the counselor could give in court also, or if he/she would be willing to testify. As I said, she will have a difficult time getting sole physical and legal custody after 9 months of a working arrangement that she agreed to.
I suggest getting together a “divorce file”. Keep documentation of everything. Get statements from people that have been around you and the children. Figure out if any of those people would be willing to testify on your behalf or give deposition to an attorney for court. Take photos of your home and where the children sleep. Put in any pictures you may have of them since the separation began, and any receipts. The most important thing is not to involve the children in this. If the stbx does mention to them, ask her, in writing, to please not involve the children. Children should never be made to choose between their parents and by involving them in custody disputes that is essentially what is done. They are put in the middle and forced to choose one parent over the other, even if the parent is telling them they do not have to choose the pressure is still there.

Your plus in this is that your children are so young. Your 3 yr old is likely not to remember any of this, the oldest may have some vivid memories, but it’s likely to be very few. I was about 2-3 when my parents split up and divorced. I have no memories of them ever being together. My older sister who was 5-6 at the time does have memories of before they separated but some of them were not accurate. Just keep in mind that things do get better over time and that the children come first. Hang in there.

4

  1. It is rare for one party to have sole legal custody in this state. In your case it will depend on whether the court feels there is a likelihood that you will begin to abuse cocaine again. If they believe there is a realistic chance that may happen, it is likely she will get sole legal custody. TO prevent this, you should have as much evidence as possible available about what your addiction is and what you have done to combat it and make sure it does not happen again.

  2. No parental rights are different than custody and nothing you have stated here makes me believe you would lose your parental rights now.

3 &4 are questions that I cannot answer without meeting with you and reviewing all the facts of your case.

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

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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.

5

I have 4 basis questions;

My wife has filed agains me for sole physical, and sole legal custody of our two children. They are 3 and 6, beautiful little girls. It should be noted that we had a period about 2 years ago where I was diagnosed with self medicated (by cocaine) bi-polar disorder. We went through a period of about 4 months of nothing but problems. Since then (20 months ago), I have completed a DOSE program, and there hasn’t been one single instance of violence, drug abuse, anything at all. I have always been a good father, attended school functions, and changed diapers etc. Since the seaparation we have ahd a great agreement of visitation and one night I kept the kids an extra night and she went nuts, and filed for custody against me. I have been a great father, parent, and dad. I never once hit my children, and have a nice home for them. Since the separation (9 months ago)I have been going to counseling twice a week, started a business, and become 100 times the better parents I was. I am financially stable, and attend every school and extra carricular activity possible, doctors appointments etc. What’s most horrible I guess is, my wife still sees me as what I was for that brief period 2 years ago, and refuses to see that I have drastically broke my back to change. She moved in with her parents and has done this wierd thing of replacing me as the childrens father, caregiving co-parent, and her husband basically, with them, it’s plain wierd.

1 - She is citing that she has been the primary care giver over the past 6 years, that I never changed a diaper, went to school events, doctors appointments etc. She swore out an affadavit along with her lying father that make up a bunch or stories that just aren’t true. What are the chances she will get full legal custody?

2 - Are parental rights the same as legal custody? will I loose my parental rights as well?

3 - During the first 9 months of separation I had the kids every other weekend, and one night a week for dinner (verbal agreement between us)We worked every schedule change out well between us, and she constantly gave me extra time, will I get more time than that with the children in court?

4 - I am seeking 130 overnights yearly with the children, is this reasonable to expect?

Neil Kravis