Shared Parenting Bill in North Carolina Senate
Custody disputes have been highly problematic for clients, attorneys and the courts for a long time. They are emotionally charged trials with often little evidence that points clearly towards one parent or the other as being a better option. So, judges are left to decide a child’s fate based on a noble, but nebulous standard of “the best interests of the child”. And, due to the repetitive nature of these cases, a court frequently has to decide these cases multiple times for just one child.
The most common issue in these trials is the schedule of overnights. That is, how many nights will a child spend with each parent, and how will those nights be structured? While this answer has financial implications due to the child support guidelines, it is largely an emotional issue for clients. Parents often see the distribution of overnight visits as a proxy for their relative parenting value, a symbolic judgment by the court that one of them is “better” for the kids than the other. If there has been conflict over parenting during the relationship, then the court’s divvying up of overnights frequently takes on an emotional meaning for parents that goes far beyond the practical impacts.
For these emotional reasons, parents litigate custody actions far more than the legal and practical realities would otherwise dictate. The irony of course being that the court fight itself runs contrary to the best interest of the child. And these often needless lawsuits serve as a severe drain on the court system, preventing the courts from addressing cases where children are in actual need of court protection and intervention.
To try to address this dynamic two North Carolina Senators have proposed Senate Bill 711. This bill’s short title is the Presumption of Shared Parenting Act . The bill would rewrite the primary child custody statute in North Carolina.
The first section of the proposed law sets forth a statement of North Carolina’s public policy regarding parenting of children whose custody is in question. The first listed policy is to “Encourage child-centered joint parenting agreement [sic] to reduce litigation over child custody matters.”
The remaining policy statements collectively state that North Carolina’s policy is to encourage maximum contact between a child and each parent, that the courts should PRESUME that both parents are fit parents and that the parents’ inability to get along with each other should not be used to overcome this presumption.
The statute then creates a legal presumption that “each parent will share as close to an equal amount of time with the child, but not less than thirty-five percent (35%) of the amount of time with the child as research currently suggests.”
First, it is important to note that this law would make official North Carolina’s policy of encouraging parents to agree to a co-parenting plan on their own and not bring these issues to the courts. This is a policy that I would certainly encourage. When the very government that will be making the decision about your kids is telling you that they don’t want to make decisions about your kids, then maybe we should listen…This policy really is an admonishment to parents to act like adults and handle their co-parenting issues in a reasonable way outside of court.
Secondly, the law would create a new legal presumption in custody cases. In reality, this presumption probably just makes explicit the assumption that many judges make at the beginning of a case. That assumption is that both parents in a case are valuable and capable of parenting their children in an acceptable manner, unless somebody proves otherwise. But, those judges that do harbor conscious or subconscious biases towards one parent role or the other would have to start from a different starting point if this law is passed. This presumption would probably function much like the current legal presumptions of a 50/50 split of marital property in equitable distribution or the presumption that the child support guidelines will be used in a child support case. That is, somebody will have to present a fairly compelling reason (some of which are mentioned in the bill) as to why a child would not benefit from roughly equal time with each parent before a judge could legally stray from the presumption.
Further, the presumption is given some clear(ish) lines by creating a floor of 35% of the time with each parent. The bill as currently written is not clear enough on this point, however. It does not state what “time” means. Does it mean 35% of the overnights? Is that 35% of the overnights in a month, a year? Or, is it 35% of the hours in a day, week, month or year?
Regardless of the exact eventual meaning, the number gives a clear indication of what is considered roughly equal time with each parent under this bill. Anything outside of that range and the court would have some explaining to do, literally. The trial court would have to include sufficient findings in its custody order to justify altering the 35% floor.
The practical effect would, most likely, be that attorneys would have a stronger basis upon which to predict the outcomes of potential custody suits for their clients. Much like the 50/50 property distribution presumption and child support guidelines in place now, the 35% presumption would narrow the range of predicted outcomes such that the resolution of cases would be easier. A narrow range of predicted outcomes facilitates settlement (as can a very wide range for risk reasons, but the current situation creates a range of outcomes that is neither predictable enough to force settlement nor risky enough to scare everybody into settlement).
The bill is currently sitting on the desk of the rules committee, which, to my understanding, means that it is probably dead for now. But, given the constant and unsustainable burden on the courts created by custody cases, and family law cases in general, this bill or a future iteration will probably make its way to a vote in the not too distant future. It will be fascinating to see what policies are delineated in that version.
(P.S. If the Legislature really wants to lower the number of cases in family court, an alimony formula or presumption would perhaps go even further than a child custody presumption.)
photo credit: <a href=”http://www.flickr.com/photos/85608594@N00/15300693940″>Carl Jung Children are educated by what the grown-up is and not by his talk</a> via <a href=”http://photopin.com”>photopin</a> <a href=”https://creativecommons.org/licenses/by/2.0/”>(license)</a>
Amendment One Update
As an update, I have pasted below a blog post from the Greensboro News & Record from a group of Family Law Professors from the various law schools in North Carolina:
As usual, Doug, your comments are thoughtful. But family law professors from every law school in the state – including Campbell – agree with the UNC white paper on the dangers that Amendment One poses to domestic violence protection for unmarried couples. The Campbell white paper ignores a critical distinction between the Ohio amendment and Amendment One. The Ohio Supreme Court eventually concluded that the Ohio amendment did not require denying domestic violence protection to a victim unmarried to her abuser. But the Ohio amendment merely prohibited THE STATE from CREATING a legal status for unmarried relationships. Amendment One is much more far-reaching. Amendment One declares that the only “domestic legal union” that the state shall find “valid” or “recognize” is a marriage. In other words, all other “domestic unions” are “illegal,” or “not lawful.” Surely, lawyers who represent batterers who live with victims to whom they are not married will argue for this interpretation. I certainly hope that ALL the district court judges in the state who hear this argument will reject it, which seems a vain hope indeed. And I hope that when after some district court judges accept the argument, the appellate courts of this state will eventually reject it. But how much domestic violence are we willing to tolerate until that happens – assuming the appellate courts reject the argument? There is no reason to tolerate any. Marriages in North Carolina have been limited to a man and a woman for 150 years. Fifteen years ago, we passed yet another marriage statute, making clear that if same sex couples marry in a state that permits their marriages and then move to North Carolina, North Carolina will not honor their marriages. If Amendment One is defeated, which I fervently hope it will be, nothing changes. Marriages in North Carolina will continue to require the “consent of a man and a woman,” as they have for 150 years. If Amendment One passes, things change: unmarried families – some of whom are prohibited by the state from marrying – are a lot less safe. That’s why family law professors from every law school in the state – including Campbell – have joined this statement:
We are family law professors who teach at every law school in the state of North Carolina. We speak on behalf of ourselves, rather than our institutions. Based on our professional expertise, the language of the proposed North Carolina amendment is vague and untested, and threatens harms to a broad range of North Carolina families. The amendment is phrased more broadly than most similar amendments in other states, and would therefore likely be construed by courts more broadly than in other states. The amendment would certainly ban same-sex marriages, civil unions, and domestic partnerships, and would very likely ban the domestic partnership health insurance benefits that a number of municipalities and counties currently offer to same- and opposite-sex unmarried couples. It also threatens a range of other protections for unmarried partners and their children, including domestic violence protections and child custody law. We are aware that some law professors at Campbell Law School think otherwise. In our view, this disagreement simply underscores the fact that Amendment One is vaguely worded and that it is not possible to know how broadly it will eventually be construed.
April 20, 2012
Jean Cary
Professor of Law
Campbell Law School
Scott Sigman
Associate Professor
Charlotte School of Law
Katharine Bartlett
A. Kenneth Pye Professor of Law
Kathryn Bradley
Professor of the Practice of Law
Director of Legal Ethics
Carolyn McAllaster
Clinical Professor of Law
Director, Duke Legal Project
Duke Law School
Sonya Garza
Assistant Professor
Elon School of Law
Kia H. Vernon
Assistant Professor of Law
North Carolina Central School of Law
Maxine Eichner
Reef C. Ivey II Professor of Law
Holning S. Lau
Associate Professor
UNC School of Law
Jennifer Collins
Professor of Law
Suzanne Reynolds
Executive Associate Dean and Professor of Law
Wake Forest School of Law
Understanding Amendment One in North Carolina
On May 8th, North Carolina voters (that is probably you) will go to the polls (hopefully) to vote on Amendment One. Amendment One would theoretically change the North Carolina Constitution to ban same sex marriage.
The actual wording of the Amendment is as follows:
“Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”
The wording is a bit confusing and a little vague legally. That has contributed to great confusion among people I have talked to as to what they would actually be voting for or against.
In an effort to help educate people on the Amendment, I have included below the Executive Summary of an article entitled “Potential Legal Impact of the Proposed Same-Sex Marriage Amendment to the North Carolina Constitution” (footnotes omitted). You can read the whole article here. This article was written by law professors at the UNC School of Law (my alma mater in the interest of full disclosure).
One thing to understand initially is that North Carolina does not recognize same sex marriage. Same sex couples cannot get married or divorced in North Carolina under current law. Perhaps that is one reason for the confusion.
My hope is that you will feel a little less confused about the Amendment and it’s potential impact before you vote on May 8th (I strongly encourage everyone to vote!). Also, this is by no means the only view of the Amendment. But, it is the most unbiased and academic one that I could find that was not from a political based group.
EXECUTIVE SUMMARY
The proposed Amendment would not simply place this state’s current statutory prohibition of same-sex marriage into the North Carolina Constitution, as its sponsors seek.
Instead, the proposed language is problematically vague, untested, and threatens to upend years of settled law. In prohibiting state recognition or validation of “domestic legal unions,” the proposed Senate bill would introduce into the Constitution a phrase that has never been used in any prior statutory law in North Carolina, never been interpreted by its courts, and never been interpreted by courts in any other state. Taken as a whole, the bill’s language is sufficiently vague, and its
scope significantly unclear, that it would enmesh our courts in years of litigation to untangle its appropriate meaning. Moreover the eventual result of judicial interpretation of the Amendment would be uncertain. It could, however, be interpreted to upend completely the very minimal legal rights, obligations, and protections now available to unmarried couples, whether same-sex or opposite-sex.
The Amendment could be construed by courts to:
Prevent the courts from enforcing private agreements between unmarried couples, therefore encouraging the wealthier members of couples to avoid marriage so that they will not be subject to obligations to transfer property;
Interfere with child custody and visitation rights that seek to protect the best interests of children;
Invalidate protections against domestic violence to members of unmarried couples;
Interfere with end-of-life arrangements, such as wills, trusts and medical powers of attorney, executed by unmarried couples;
Invalidate domestic partnership benefits currently offered to same-sex and opposite-sex couples by local municipalities;
Prevent courts from enforcing private employers’ agreements to provide benefits such as health insurance to employees’ domestic partners.
The vague and untested language of the Amendment would therefore cause real harm to a broad range of North Carolina citizens. The proposed Amendment could be interpreted to strip the increasing number of unmarried heterosexual couples of their ability to order their relationships and property through contract, deny legal protection against domestic violence, and cut them off from custody of their children. By the same token, committed same-sex couples in North Carolina, who are already precluded from marrying, would also no longer have access to these minimal protections. Even if courts did not ultimately adopt a broad interpretation of the Amendment’s language, these couples’ rights would be uncertain during the inevitably long period of time that it took for these issues to work their way through the courts. The Amendment’s broad sweep would also interfere with municipalities’ freedom to determine domestic partnership benefits for their own employees. It could also undermine private employers’ efforts to attract top employees to North Carolina by providing employee benefits to domestic partners, as the courts and public medical facilities may not be permitted to recognize those benefits. Finally, the breadth of the Amendment’s language and its untested terminology will significantly tax the resources of North Carolina courts, which will be charged with interpreting its scope.
New Protections Against False Paternity and Child Support Claims in North Carolina
As of January 1 of this year, men in North Carolina have some new protections from false paternity claims.
Since the beginning of this year, new laws have been in effect that provide new procedures for men who want to dispute that they are the father of a child.
The legislature amended or created three laws that give fathers a clear-cut process for asking a court to officially declare that they are not the father of a child.
Specifically the new laws provide a way to ask a court to overturn a paternity order, an affidavit of parentage or a child support order if the father believes he is not the father of the child.
However, the alleged father has only one year from the time he knew or had reason to know that he was not the father to challenge paternity under these new laws.
The new laws for overturning paternity orders or affidavits of parentage require two showings: First, a father must prove that the paternity order or affidavit was created by “fraud, duress, mutual mistake, or excusable neglect.” If a father files a motion alleging sufficient facts, then the court has to order genetic testing of the mother, child and alleged father to determine whether the alleged father is the actual father.
If the alleged father can prove fraud, duress, mutual mistake or excusable neglect AND the genetic tests show that he is not the father, then the court can set aside the paternity order or affidavit.
Further, a new statute allows men to ask a court to let them out of child support if they can prove by clear and convincing evidence that:
1. He has not acknowledged paternity of the child, or that he acknowledged paternity without knowing that he was not the actual father (“acknowledgement” includes public acknowledgement and supporting the child while married to the mother, sworn statements and affidavits claiming to be the father, consent orders, voluntary child support agreements, or any other legal agreement to support the child, and admissions of paternity in open court); and
2. He had not adopted the child; and
3. He has not legitimated the child; and
4. He is not the child’s legal father under N.C.G.S. 49A-1; and
5. He has not done anything to prevent that actual father from asserting his parental rights to the child; and
6. Genetic testing shows that he is not the actual father.
If the man can show all of the above facts (no juries are used in these cases), then the court is required to cancel the child support obligation. However, the man generally does not get any money back that has already been paid. (The man can get any support that he has paid from the filing of this motion until the cancellation of the support obligation if he can prove that the mother conned him into believing he was the father). The man cannot get any money back if he has been making payments to anyone other than the mother. The court also has to order that the birth certificate be changed to remove the man’s name.
Men and their attorneys have long cried out for a better way to challenge false paternity claims. They now have relatively clear processes for defending themselves from these claims.
The Soul Mate Myth?
Many authors and theorists have proposed that the idea of a “soul mate” is a basis for our high divorce rate.
The summary of this argument is that if you believe that your soul mate is out there, then you believe that marriage will work if you just find the right person.
Thus, if marriage gets hard, then you married the wrong person.
In short, believing in a soul mate is believing that marriage is about the other person’s personality, not our own efforts. Or, so the argument goes.
Timothy and Kathy Keller argue against the soul mate idea in their recent book, The Meaning of Marriage. The following excerpt succinctly makes their point:
You never marry the right person
The Bible explains why the quest for compatibility seems to be so impossible. As a pastor I have spoken to thousands of couples, some working on marriage-seeking, some working on marriage-sustaining and some working on marriage-saving. I’ve heard them say over and over, “Love shouldn’t be this hard, it should come naturally.” In response I always say something like: “Why believe that? Would someone who wants to play professional baseball say, ‘It shouldn’t be so hard to hit a fastball’? Would someone who wants to write the greatest American novel of her generation say, ‘It shouldn’t be hard to create believable characters and compelling narrative’?” The understandable retort is: “But this is not baseball or literature. This is love. Love should just come naturally if two people are compatible, if they are truly soul-mates. “
The Christian answer to this is that no two people are compatible. Duke University Ethics professor Stanley Hauerwas has famously made this point:
Destructive to marriage is the self-fulfillment ethic that assumes marriage and the family are primarily institutions of personal fulfillment, necessary for us to become “whole” and happy. The assumption is that there is someone just right for us to marry and that if we look closely enough we will find the right person. This moral assumption overlooks a crucial aspect to marriage. It fails to appreciate the fact that we always marry the wrong person.
We never know whom we marry; we just think we do. Or even if we first marry the right person, just give it a while and he or she will change. For marriage, being [the enormous thing it is] means we are not the same person after we have entered it. The primary challenge of marriage is learning how to love and care for the stranger to whom you find yourself married.
Their point is made from a Christian perspective. But, the point stands regardless of religious or spiritual issues: “The primary challenge of marriage is learning how to love and care for the stranger to whom you find yourself married.”
Food for thought for those married or wanting to be married. I certainly see the soul mate belief echoed in many clients and their spouses.
I don’t know whether the soul mate belief contributes to our divorce rate, and we may never know for sure. But, I do think some serious consideration of the issue helps immunize a marriage from divorce.
Immunizing Your Marriage Against Divorce
In my experience, differing and unmet expectations are often the genesis for divorces.
Typically, tension develops because the husband and wife entered the marriage with unspoken but differing expectations about the issues they will confront after the wedding.
Those differing expectations can create conflict. Unresolved conflict creates rifts in marriages. Rifts create divorces.
One way to immunize your marriage against divorce is to learn to resolve conflict effectively. That is something that typically takes time to learn and very few people possess that skill on the day they are married.
Another great way to help immunize your marriage against divorce is to identify and address your differing expectations before the wedding.
How do you do this? Pre-marital counseling is a great tool for identifying potential future conflicts.
But, if pre-marital counseling is not your cup of tea, there are tremendous benefits to simply having a conversation with your future spouse about some typical issues that I have seen come up in marriages that end in divorce, such as:
– Who will work and how much will they work? What kind of work/life balance do you expect the other person to maintain?
– How much money do you expect to make as a couple?
– What kind of lifestyle do you each expect?
– Will one of you will stay home if you have kids?
– Do you want kids? How many?
– Do you prefer to be financially conservative (lots of saving, low risk moves) or more daring (lower savings, higher risk moves)?
– What kind of parenting styles do you anticipate?
– What are appropriate discipline techniques for your family?
– Where will you spend holidays and who else will be there?
– How involved will your in-laws and extended families be in your lives?
– How will you share the chores of the household? Will you share them at all? If not, who is going to do them?
– How clean do you expect your house to be on a regular basis?
– What kinds of things do you expect to be able to spend money on?
– Who will handle the family finances?
– Will the family follow a budget?
– Do you believe in having debt, or are you debt averse?
All of these issues and more can be sources of friction in a marriage if not addressed early on. Every couple has their own points of conflict.
I have found that many people make assumptions about their future spouse’s feelings on these topics; only to later find out they were wrong. There’s an old saying about what happens when you “assume”, and it holds true in marriage as well. Don’t assume what your future spouse thinks about something; find out.
Identifying and discussing these issues early on may not be comfortable. But those conversations will help prevent future conflict and therefore immunize your marriage against divorce down the road. And that is a truly worthy goal.
Top Five Slightly Sarcastic Co-Parenting Tips for the Holidays
The holidays can be stressful. And they can be especially stressful for families in the midst of a separation or divorce. But, there are some better and worse ways to handle the holidays. Here are five tips to help you avoid mistakes that I’ve seen others make (it’s late in the year and my sarcasm filter is a bit fatigued, so excuse the snark):
1. Don’t Hog the Kids: Big holidays are important to kids. They want to share the experiences with both parents and maybe even both sides of the extended family. Just because you don’t care whether the kids see the other parent for these holidays doesn’t mean that it’s not important to the kids.
2. Gift Giving is Not a Competition: Don’t try to outdo or show-up the other parent with your over-the-top gift deluge. You can’t buy your kids’ love; they already love you. And, if they don’t, then that life size robotic T-Rex from the Times Square Toys R Us isn’t going to change that.
3. Respect Traditions: Kids like their family’s traditions (well, usually anyway). Traditions represent stability and predictability for kids, something they are desperately looking for in the midst of a separation or divorce. Maybe you’d rather eat a giant bowl of Aunt Bethany’s lime Jell-O mold with the cat food topping (anybody catch that reference?) than go on that caroling trip through the neighborhood. But, that doesn’t mean that the kids don’t like it.
4. Don’t Argue About The Holidays In Front of the Kids: Wanna know how to ruin the holidays for the kids? Get in a fight about the holidays in front of the kids! They’ll really come to cherish the annual holiday family shouting match. Good times.
5. Don’t Force the Kids to Choose Their Holiday Schedule: Another stellar way to take the fun out of the kids’ holidays is to tell them “You get to choose whom to spend the holidays with!” No pressure. “Dear Santa: You know, toys are great and all, but this year for Christmas I would like to be faced with a no-win decision that forces me to choose between two people that I love dearly, with the risk of terribly disappointing one of them! And, if you can fit some self-esteem and peace of mind in your sack for next year, that would be great. I think I’m gonna need it. Love, Timmy.”
HOLIDAY BONUS! (Sorry if you were expecting a Jelly of the Month Club membership):
6. Have a Conversation About When To Reveal the Santa Clause Truth: If you really want a lump of coal, then go ahead and tell your kids that Santa isn’t real without consulting the other parent. Imagine the Christmas joy when the other parent finds out that their 5 year old doesn’t believe in Santa anymore because you let the cat out of the bag! Seriously, it’s the gift that keeps on giving. If the kids at school get to your kids first, then so be it. But, nobody likes a Grinch. Except for Cindy Lou Who and Martha May Who. And they’re not real.
Divorce Insurance, Pre-Nups and Co-habitation Agreements in North Carolina
As this recent New York Times article points out, some people are choosing to begin their marriage with the (potential) end in mind.
Pre-nuptial (a/k/a pre-marital) agreements have been around for a long time. The new trend is that couples that cannot, or do not want to get married are choosing to put their understanding about how their relationship will work and how it will end in writing up front.
In North Carolina, same sex couples cannot be legally married. So, a pre-marital agreement is not an option. Given that the number of same sex couples in North Carolina has risen 68% since 2000, cohabitation agreements may become far more popular.
For heterosexual couples that want to live together but choose not to marry, a pre-marital agreement is likewise useless.
But, both kinds of couples have the option of executing a co-habitation agreement.
This kind of agreement can set forth the understanding of how the relationship will operate. For instance, the terms can state that one partner will stay at home to raise children, while the other is expected to earn the family funds at work. Or, it can state that both parties will work outside of the home. The agreement can state how many children each party expects to have or adopt, how many vacations the couple will take and even whether one of the partners is expected to cook meals (I have actually seen that).
More commonly, these co-habitation agreements pre-arrange how (but not if) the relationship will end. The terms often set forth how assets and debts of the relationship will be handled in the event of a break-up. They can dictate what process the parties will use to determine these issues in the event of the break-up (Collaborative Law, mediation, etc…).
Some see these agreements as cold or anathema to romance. But many couples are comforted to know that they have agreed not to drag each other through a nasty court battle if things don’t work out. And, having a discussion about big important issues and expectations before entering a long-term relationship is a good idea, even if it does not lead to an agreement.
As for divorce insurance, one company (in North Carolina of all places) thinks it’s a great idea.
From my point of view, the best insurance for your marriage is to discuss the big issues before you get married, and then commit to really truly communicating during the relationship. Discussing the terms of a pre-nuptial agreement encourages that conversation far more than simply buying an insurance policy.
Divorce and Taxes
As this article from Time Magazine points out, there are many tax issues involved in a divorce. Even parents who have never been married (and therefore never divorce) face tax issues related to sharing time with their child.
There are special tax treatments for alimony, post separation support, property division, dependency exemptions, child tax credits, head of household status and a myriad of other issues in family law.
While the five issues mentioned in the article about divorce and taxes are important, they are not the only issues involved.
I generally recommend that clients at least consult a CPA or other tax professional before and after their divorce to determine how the tax ramifications of the divorce may affect them.
A good family law attorney will understand most of the tax issues involved in divorce. But, a family lawyer is no replacement for the advice of a good tax professional.
Randolph (Tré) Morgan III is an experienced family law and collaborative divorce attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas. He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.
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