Separation 101 with child


#1

Child is 2 years old.


#2

Father is 100% income. Mother is 100% stay at home. Living beyond means . . . accumulating debt.

DrPepper


#3

Access to the child can not be denied or restricted until custody is decided by court order or agreement. Until that time, custody is equal. I suggest that the agreement get drawn up as soon as possible to avoid future issues about relocation. Joint custody w/equal time is possible but only when the parents live near each other so that the child does not have to change schools and when the parents can discuss situations and issues and come to agreements that are in the child’s best interest. NC defaults to joint legal custody if it is not specified.
I suggest that you figure out what type of custody you want now because that will set the precedent for what you may end up with in the future. If you can not agree on custody then custody can be filed by either parent. The courts will require that you go through mediation and that can often settle the disputes about custody. I suggest that you at least consult an attorney and then attempt to work out an agreement yourself before taking it to court. The only ones who really win in court are the attorneys…the couple have all sorts of bad things true or not said about them in court and the children are going to lose either way.

The area you are asking about is going to need to be settled. If you do not want the child to leave the state you will need to file for custody and request that the mother remain in NC. More than likely this would all take place in the county of residence or the place of the marital home.

If your separation has begun then you need to consult an attorney soon to find a suitable agreement and find out where you stand. The finacial situation that you find yourself in could get worse the longer you wait to separate accounts and limit access to funds. Start separating credit and finacial accounts now if you have not already done so. Your spouse will probably be entitled to alimony since you are the sole income so you should put into the agreement an amount that you are comfortable with and a time limit, such as this amount will be paid monthly until child reaches the age of school. At that time the mother must find employment to contribute to the child’s financial needs.

I believe that most go through a period of time right before separation that is stressful. There are arguements and occasionally the child/children are present for these. If there is no previous history of abuse, that can not be used as an excuse to deny access to the child. Almost every couple goes through this during divorce. One parent or the other almost always thinks that the other parent can not take care of the child. This is normally because the other parent never has had the opportunity. The spouse’s opinion does not have a lot of weight because opinions tend to run negative during this time. There is little that can be done to protect yourself against slanderous comments being made. If it is malicious and is intended to ruin a career or alienate your child’s affections, the offensive person can be sued. But I will tell you that this does happen in separations and divorces. Expect that the spouse/stbx will say all sorts of bad things about you to get more people to their side of the fence so to speak. People who know you, it will not matter. What all this boils down to is that opinions do not matter when it comes to court. Facts are the only thing that is admissible. If you can not prove that someone is violent by prior acts, police reports, eyewitnesses, then the person is not considered violent by the court and there would be no reason to restrict visitations or custody.
Neither parent can put restrictions on visitations until an agreement or court order is in place. It’s often done anyway, but it’s not legal…


#4

Until there is a custody order in place each one of you has the right to custody of your child at any time, which unfortunately means either one of you could take the children and keep them away from the other parent. This is generally not a good idea. If she is giving you trouble about custody and not allowing you access to your child, then it may be time to file a lawsuit, if this situation continues long term it could affect your permanent custody schedule.

If you went to court the judge would not tell either of you where you had to live, but would set a schedule in place and can prohibit either of you from living out of the state with the child. There are no specific rules for determining where you must live, this issue needs to be litigated in the county where the child lives though.

If you are afraid she is going to make false accusations against you, you should gather as many witnesses about you that are willing to testify that you are a caring and loving father and that she has never indicated she was afraid of you.

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 for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
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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

Background:
Married 3 years, marital home is outside of wake county, child and mother live in marital house, but plan to sell quickly.

Father works in Raleigh, rents room, commutes to marital home on weekends, currently and for past year.

Mother wants separation, denying father access to marital home, denying father overnight with child.

Mother wants to relocate out of state, with child

Separation/denial of access to marital home started 2 weeks ago

Relationship has been on rocks for over a year, many verbal arguments, some in front of child, always antagonized by mother, but participated in by father . . . Mother is claiming physical fear for child because father has in frustration slammed doors, clenched fists,