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How to get full custody of a child in north carolina


Child Custody | North Carolina Judicial Branch

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NEW RESOURCE: Child custody and visitation recommendations during COVID-19. Learn more. 

What is child custody and visitation?

Child custody includes the right to make major life decisions about a child and the right to have the child in your care. Visitation is a secondary form of custody, which includes the right to visit with a child at times set forth in a court order, sometimes under specific conditions. “Visitation” is frequently used to refer to a person’s parenting time when it is relatively limited.

What is the difference between legal and physical custody?

Legal custody is the right to make major decisions about the child. Physical custody means the right to have the child in your physical care, either all the time or part of the time.  Both legal and physical custody can be either shared by the parents or held solely by one parent.

What do sole custody and joint custody mean?

A parent who has sole legal custody can make major decisions about the child’s life without consulting the other parent. If parents have joint legal custody, then they must consult one another and jointly make major decisions, such as where the child will attend school or whether the child will have a major medical procedure. If the parents cannot agree, a court may have to make the decision.

Sole physical custody means that the child lives with one parent only, though the child may visit with the other parent. Joint physical custody means that the child’s time is split between the parents. There are many possibilities for joint physical custody. One parent may have primary physical custody, meaning the child lives with that parent most of the time, while the other parent has secondary physical custody, for example, every other weekend, or regularly scheduled dinner visits. Alternatively, there may be an equal split in which the child alternates between the parents on a regular basis.

Am I required to get a custody order?

Parents who are no longer together are not required to get a custody order, but may choose to do so in case they do not agree about the child’s care. Non-parents do not need a custody order to provide temporary care for a child as long as the parents agree that the child will live with or be cared for by the non-parent. However, schools, medical providers or other third parties may require a custody order before allowing a non-parent to make decisions for a child. 

What happens if there is no custody order?

Both legal parents have equal rights to the child if there is no custody order. “Legal parents” are people officially recognized as parents on the child’s birth certificate, a court order such as a child support or adoption order, or an affidavit of parentage. Without a custody order, the rights of non-parents are much more limited, and the parents generally have the right to custody of the child.

What happens when the child turns 18?

At age 18, your child is legally an adult, and the courts no longer have the authority to order custody or visitation.

Does the law prefer one parent over the other?

No. Either parent can be awarded custody of a child of any age, depending on the family’s specific circumstances.

Does failing to pay child support affect a parent’s custody rights?

A parent’s custody rights do not depend on payment of child support, but on the type of relationship with the parent that is in the child’s best interests. A court may consider refusal to pay child support in its analysis of the parent’s ability to act in the child’s best interests.

What is an emergency custody order?

An emergency custody order, sometimes referred to as an “ex parte order,” is an immediate, short-term custody order that a judge can grant under limited emergency circumstances, without hearing from the other party. The grounds for granting emergency custody include situations in which a child is at a substantial risk of bodily injury, sexual abuse, or removal from North Carolina for the purpose of avoiding the authority of the North Carolina courts. Law enforcement can assist in recovering a child with an emergency custody order. If an emergency custody order is granted, a hearing must be scheduled so that both parties have the opportunity to be heard. You should consider hiring an attorney if you need to file for emergency custody, because the process is complex.

Filing for Custody

Who can file for child custody or visitation?

Any parent can file for custody, whether the parents are separated, divorced or never married. Third parties, such as grandparents, relatives, or others who have cared for the child, can file for custody or visitation under some circumstances. To obtain custody, non-parents must prove that the parents are either unfit to care for the child or have not acted in accordance with their rights as parents, for instance, by abandoning the child to be raised by a non-parent. Grandparents may also be awarded visitation in some circumstances when there is a custody case between the parents. Non-relatives requesting custody must prove that they have a substantial relationship with the child. 

How do I file for custody?

To ask a court for a child custody order, you must file a complaint. Your lawyer can file the complaint for you, or if you do not have a lawyer, you can file a complaint yourself.

What resources can help me file for custody without a lawyer?

You can find information online about the process, child custody paperwork, and clinics conducted by Legal Aid of North Carolina.

Where should I file my custody case?

Custody cases must be filed in the child’s “home state,” which is the state where the child has lived for the six months before the case is filed. If you had a previous custody case about the same child in a different state, you generally must return to that state to change your custody order as long as one of the parties still lives there.

Within North Carolina, you may file a custody case in the county in which the child resides or is physically present or in a county where the parent resides.

What happens when I file for custody?

After you file your case, you must ensure that the summons and complaint are served on the other parent, generally either by the sheriff or through certified mail. A judge can only make decisions in your case after the other parent has been served with the summons and complaint.

Generally, before a judge can hear your case, it will be sent to the Custody Mediation Program. See the Custody Mediation Help Topic for more details about custody mediation. If you and the other party are unable to agree on a custody and visitation plan in mediation, a judge can hear your case to make a decision for you. In most cases, a hearing will be scheduled only if one of the parties requests it.

I went to court for custody in the past, but the situation has changed. Can I file a new case?

If a judge signed a custody order in your earlier case, you will need to file to modify that order rather than filing a new case. In general, your Motion to Modify should be filed in the court that made the original decision. In some situations, if your previous case was dismissed, you can file a new custody case. See below for more information on modification.

Legal Representation

Do I need an attorney for my child custody case?

You are not required to hire an attorney, but child custody cases are often factually complicated and require the presentation of witnesses and documents. If you represent yourself in court, you will be held to the same rules of evidence and procedure as a licensed attorney. Court officials, such as judges and clerks of court, cannot provide you with legal advice about your rights and obligations or the likely outcome of your case based on your family’s circumstances. See the Find an Attorney Help Topic for more information about finding an attorney to represent you.

Can I get a court-appointed attorney for my custody case?

No. The court does not appoint attorneys to represent parties in child custody cases.

Court Process

Someone has filed a case for custody or visitation against me. What do I do?

If you are able to do so, you should discuss the case with an attorney as soon as possible. You must respond to the lawsuit by filing an Answer within 30 days after you are served with the summons and complaint. You should also attend all mediation and court dates. You will not be arrested for failing to appear in court for your custody case. However, if you do not attend mediation or hearings, you will lose your opportunity to tell the judge your side of the story and request custody or visitation rights.

What is custody mediation?

Custody mediation is a conversation between the parents assisted by a professional mediator. The mediator works with the parents, without attorneys in the room, to come to an agreement about child custody, if possible. You can learn more about mediation in the Custody Mediation Help Topic.

Who will decide my custody case?

If you and the other parent are not able to agree on a custody order in mediation, a judge will decide your case after a trial in which you both have the opportunity to testify and call witnesses. If your judicial district has a family court program, you may have one family court judge assigned to decide all matters in your case. If not, any district court judge can hear your case.

What will the judge consider in deciding my case?

Judges decide child custody based on “the best interests of the child.” This decision can include many factors, such as the parents’ living arrangements, each parent’s ability to care for the child, the child’s relationship with each parent, and any other factors affecting the welfare of the child. While fairness to the parents is important, this is secondary to the child’s welfare. A party’s shortcomings as a spouse or relationship partner will generally only carry substantial weight if they also impact the party’s parenting abilities. An attorney can advise you on the most relevant factors in your specific case.

Can my child talk to the judge about what he or she wants?

There are two situations in which a parent may bring a child to testify in court, and the requirements are slightly different. There is no age limit preventing parents from bringing young children to testify, but this can affect the judge’s view of the parent’s judgment, depending on the age of the child and other circumstances.

  • Children can testify as witnesses to specific incidents. Before taking testimony from a child, the judge must determine that the child understands the importance of telling the truth.
  • Children can speak to the judge about their preferences. In this case, the judge must determine that the child understands the importance of telling the truth and that the child has reached the “age of discretion,” meaning that he or she has sufficient maturity and good judgment. Judges often consider teenagers’ preferences about where they want to live, but are not required to order what the teenager wants.

Many judges prefer to have children wait outside the courtroom rather than observing the trial. Many judges will speak to children “in chambers,” meaning in a separate room without the parents present, rather than having the child testify in the courtroom.

What is the difference between temporary and permanent custody orders?

Judges may enter either temporary or permanent custody orders. A temporary custody order will be in effect until the judge holds a new trial to make a decision about modifying the temporary order or entering a permanent order. Temporary custody orders are legally binding, but easier to change than permanent orders. If you are unhappy with a temporary custody order, you can schedule your case for a review of the temporary order or for a permanent custody trial. Temporary custody orders can become permanent if neither party requests another hearing for a long period of time. To change a permanent custody order, you must show that there has been a substantial change in circumstances affecting the child since the permanent order was entered.

I am currently in the military. What are my rights?

Specific laws govern the rights of active duty members of the military. If you are unable to attend court due to your active-duty status, you can request that the court case be put “on hold” until you return. You can find more information here. 

Enforcement and Modification

The other parent has violated our custody order. What can I do?

You can file a Motion for Order to Show Cause or Motion for Contempt to ask the judge to hold the other parent in contempt of court for violating the order. If the judge finds that the other parent violated the order, the judge will decide the appropriate penalty. Penalties for contempt of court can include a verbal reprimand, a fine, jail time, or requiring the party in contempt to pay the other party’s attorney’s fees. 

I have a custody order and want to change it. What can I do?

If you have a temporary custody order, you can schedule another hearing in your case without the need to file additional motions, though filing a motion may be helpful in some cases. If you have a permanent custody order, you must file a Motion to Modify. When you file a Motion to Modify, you must allege in your motion and prove in court that there has been a substantial change in circumstances since the original order was entered, and that those changes are affecting the child in a way that requires the old order to be changed to serve the child’s best interests.

I have a custody order from another state but now live in North Carolina. What do I need to do?

Custody orders from other states are valid in North Carolina. In general, even if you and/or the child has moved from another state to North Carolina, a judge in the original state will continue to make decisions in your case as long as one of the parties still lives there. If everyone has left the original state, you can ask the North Carolina courts to take over your case. If you want a North Carolina judge to enforce or change your out-of-state order, you must begin by registering the order in North Carolina. You can find the petition to register a custody order from another state or country here.

How to File for Sole Custody In North Carolina

If you and your spouse are divorcing or have divorced, and you feel your ex-partner is not suitable to be an equally involved parent to your children, you may be considering filing for sole child custody in North Carolina. To learn more, we're sharing what you need to know about sole custody in North Carolina.

Types of Child Custody in North Carolina

Because of complicated laws, filing for sole custody may not be a cut-and-dried action. You'll need a strong family law attorney on your side to fight in your child custody case, who understands the nuances of NC child custody laws.

Understanding Legal Custody

First, there are two types of custody: legal and physical. Legal custody refers to the ability to make decisions for a child, such as where they go to school, the religion they practice, or the medical care they receive. With joint legal custody, both parents have equal say in these matters and both parents must agree on a course of action. With sole legal custody, the custodial parent can make decisions on the child's behalf alone and does not need to speak with the other party.

Understanding Physical Custody

Physical custody refers to with whom the children live. While many people believe that mothers receive preferential treatment or are automatically given custody, that's actually not the case, especially in the past two decades. Now, fathers have equal rights to child custody in North Carolina.

Most often, judges determine it is in the best interest of the child for parents to have joint physical custody, meaning the child spends time with both parents, though it does not necessarily mean equal time. For example, joint custody can be one week with one parent and one week with the other, it can be weekends with one parent, week days with the other, or some other child custody schedule that either the parents agree on or the judge puts in place. In cases where a child spends more time with one parent than the other, one parent may be said to have primary physical custody with the other having visitation rights or secondary custody. There is a minimum guideline of one weeknight visit per week and every other weekend for it to be considered joint custody.

Sole physical custody is when one parent has primary physical custody for a significant amount of time, generally more than the minimum joint custody arrangement, and the other has visitation that often has stipulations attached. This could mean the visits must be monitored or supervised or that overnight visits aren't allowed.

Understanding Sole Custody

Typically, sole custody, both legal and physical, is only awarded when the judge determines a parent is not fit due to issues such as:

  • History of abusing the child
  • History of abusing the other party
  • Drug or alcohol abuse
  • Inability to provide a safe, stable environment
  • Physical and emotional health problems

Consult a Child Custody Lawyer

Can Grandparents File for Sole Custody?

In North Carolina, grandparents do not have guaranteed visitation or custody rights. However, when deferring back to the “best interests of the child” principle, a grandparent can request visitation, particularly if it's during an active divorce or custody dispute. Grandparents are often awarded visitation or temporary custody when there is an acrimonious custody case between the parents.

Filing for Sole Custody

The steps to filing for sole custody in North Carolina are challenging and having a child custody lawyer on your side can be immensely beneficial to ensure the process is handled correctly.

Whether you hire a lawyer or not, the process has similar steps. Here is what to expect when you pursue full custody.

Step 1: Prepare

When preparing for custody in North Carolina, one should come to know what they expect to get. Which of the following will best fit the needs and interests of your child?

  • Sole physical custody
  • Joint physical custody
  • An agreed-upon custody arrangement
  • Visitation rights
  • Supervised visitation
  • Child support payments

These are all aspects that you'll need to understand to be prepared. North Carolina custody laws aren't the easiest to grasp. If you can't afford a lawyer, seek a free or low consultation.

Step 2: Open a Case

Now that you've prepared yourself, it's time to open a case with the North Carolina courts. 

  • Can be filed in conjunction with an open separation or divorce case
  • If no other cases are currently active, open the case independently

After opening the case, you must follow up and notify the other parent. There are plenty of ways to do this without contacting the other parent in hopes of preventing an ugly custody dispute from unfolding.

Possible: In Case of an Emergency

The judge will issue an emergency order if sole physical custody due to an emergency is requested, and a pending custody action will be released. The judge will then schedule another hearing to decide on primary custody. 

Step 3: Mediation Comes First

Unless an emergency is declared, all parents must try child custody mediation first. Courts offer mediators for free to try to avoid a custody trial. If both parents agree, custody agreements are then drafted by the mediator, and in this case, parents can skip steps 4–6. If parents don't come up with an agreement, their case will head to a hearing.

Step 4: Hearings

Here you'll modify custody and present any information or defense you have. The judge will then devise a custody order for one or both parents, assigning both legal and physical custody.

The following are a few of the actions that may be seen in a custody rights hearing:

  • Child Custody Evaluation
  • Guardian Ad Litem
  • Parenting Coordinators can sometimes be assigned to a custody case that involves high-conflict situations
  • Temporary Custody Order
  • Ordering a secondary custody hearing

Parenting Class

In some cases, a parenting class may be requested by the judge. The judge will decide on a parenting class that best fits your family's needs. There are two options in North Carolina:

  • One-Hour Class: Taught by the family court staff
  • Four-Hour Class: Taught by court-approved professionals

Step 5: Motion of Discovery

This is one of the more extended parts of the trial. Both parties must request information to help prepare for the trial. The discoveries will contain different questions for both the parents and witnesses involved.

The discovery will help lawyers develop depositions in the custody case. Here is what a deposition may look like: 

  • Attorneys prepare and ask questions under oath
  • Questions must be answered honestly
  • Refusal of a question may be used against you in the future of the trial 

Step 6: Trial

If the case ultimately came to a trial, the parents could not reach a joint physical custody agreement on their own. Therefore the custody case will be turned over to the family law.

Step 7: Permanent Custody Orders

A Permanent Custody Order is most likely the final step in the custody battle, determining:

  • Schedule 
  • Child care costs
  • Child support

Both parents must abide by these court decisions until the child turns 18 or is emancipated.

Over the years, the child’s life may change drastically and some modifications must be made in the joint legal custody agreed upon. The court can help with these modifications over time if this is the case.

Throughout Your Case

To ask the court for a custody order or to update an existing order, you or your attorney can file a complaint (for a new custody order) or a Motion to Modify (to update an existing order) in the county where you or the other partner has lived for six months.

After filing, the other parent must receive the summons, which may be issued either by a sheriff or received through certified mail. The other parent must receive this before anything can be decided. In the interim, it's important to gather any information that may help your case, such as proof of abusive or neglectful behavior, evidence of illegal drug use, or other actions that could jeopardize the health, safety, and well being of the child.

How to Improve Your Chances in North Carolina Child Custody Cases

Parents are not guaranteed to receive full custody. However, there are some actions you can take to improve your chances.

We want to stress the importance of putting children first. Custody is not a battle against your ex. This is a serious look at which arrangements will be best for your children.

Speak With a Child Custody Attorney

To make your best case, there are some things you can do to be a better parent and present yourself in the best light to the court.

Spend Time with Your Children

No judge will grant a child custody order to a parent who does not appear to spend time with their kids. Parents who are genuinely interested in a child's welfare will make spending time with their children a serious priority. So make time for your kids and keep a record of how much time you spend with them.

Make a Calendar and Record the Time Your Ex-Partner Spends with the Kids

This is the opposite of the previous point. If you need to show your ex-partner doesn't deserve sole legal custody, then you should record the time they spend with the children. Regardless of where the child lives, with either the mother or father, track how much time they spend with your ex-partner.

Change Your Schedule to be Home for Your Child

When your child is not in school, you should be available to be with them. If the child resides with you, this is especially important. If your work schedule is not flexible, you can look at involving the child in extra activities to keep them safe and productive while you finish work.

Stay Involved in All Parenting Decisions

Things like education, healthcare, and religion are important. Talk with your ex-partner about these and get involved in the decision-making. Use email or text messages because they can be recorded. Show your care for the minor child by providing input, suggestions, and reasons for how the child will be raised.

Improve Child Custody Chances by Showing Good Parenting Skills

Parents fill a lot of roles in their children's lives. You can improve your child custody chances by acting like (and being) a good parent. This means at least a few things:

  • Help with homework and school
  • Discipline children appropriately without any hint of 'too much'
  • Supervise children to keep them active and safe

Parents could write a much longer list, but these are a good start. Be a good parent, and your chances will improve when you request custody.

Keep a Log of the Missed Activities and Appointments

It's not pleasant, and can even feel petty, but you should keep a record of the activities and appointments the children's other parent misses. This is how you can show you are better at caring for your children than their other parent. These records don't need to be super detailed and you don't need to become a super spy with photographic evidence. Simply make a note of the appointment, date, and the absence of the other parent.

Custody Decisions Consider Your Home

A court order for custody will be given after a judge weighs all the circumstances. One factor is the suitability of your home. Make sure you have enough bedrooms, beds, and rooms for your children. Keep your home clean and sanitary. Take pictures if you feel this will become a point of contention in court.

Do Not Poison Your Child's Relationship with the Other Parent

If you currently have joint custody, then be careful about how you discuss the parent with your children. You should not do or say things that undermine their position as a parent. Criticizing them, reversing their parenting decisions, and creating negative feelings in your child towards their parent is a bad idea. There are two reasons for this:

  • Most importantly, it will negatively affect your children. You will simply make them unhappy.
  • The mother or father may have parental rights, so undermining these will be viewed negatively by the custody evaluator.

Since you are arguing for your parental rights, undermining someone else's parental rights is a bad idea. A simple solution is to accept what your children say about the parent and reply with a gentle statement showing you will not discuss the matter with them.

Schedule a Consultation with Our Child Custody Attorneys in Raleigh

Resolving child support, winning a custody order, and resolving all the difficulties arising from a divorce decree takes time and care. You may be able to resolve some matters yourself. However, many people benefit from professional legal services to help them navigate the complex parts of the law and legal process. If you would like to learn more about filing for sole custody in North Carolina, reach out to our experienced family law firm today. To schedule a consultation, reach out to us today at (919) 301-8843 or fill out the form below to learn more.

Family Law - Sharifov & Associates - Attorneys at Law

division of joint property in New York

Family law is the branch of law that deals with matters relating to the family and family relations. Our family law practice includes representing clients both at the negotiation stage and in court in cases involving domestic violence (usually followed by an order of protection), divorces, separation, residence of children after divorce, and visitation of children. , child and spousal support, property division, domestic violence, prenuptial agreements, and juvenile delinquency lawsuits. We take part in out-of-court negotiations and also conduct court hearings when necessary. nine0003

divorce by consent in New York

Frequently Asked Questions:
1. What is the difference between a contested divorce and a non-contested divorce?

When both husband and wife voluntarily agree on all aspects of divorce, including division of joint property, residence and visitation of children, child support and for former spouses, or are able to sign a separation agreement, their divorce is considered a divorce by consent. Arrest for Domestic Violence in New York On the other hand, when spouses cannot agree among themselves on all aspects of divorce and separation, and require the court to make appropriate decisions on the above aspects of divorce, they are forced to deal with a judicial divorce. On the practical side, a legal divorce requires a lot more work, usually takes longer, and tends to cost more. nine0003

order of protection in new york

2. How can I get an order of protection in case family violence?

If something threatens your physical or emotional safety or the safety of your children, you should immediately seek the advice of a lawyer or seek the assistance of the Court. You need to take immediate steps to keep you and your children safe. Family courts in all counties in the State of New York are able to make a quick decision on an application for an order of protection; usually, if needed, it can be done within one day. The Summons, Petition and Order of Protection must be delivered to the defendant. This can be arranged through the local police station, privately, or through a professional document delivery agent. The Family Court may order the Sheriff's Department to serve the documents. The case will be rescheduled and the defendant will be subpoenaed to respond to the domestic violence petition. Either by agreement of the parties or after a hearing, the judge may issue a permanent order of protection, limited or complete, for up to 2 years. nine0003

Sometimes the police refuse to make an arrest during an investigation into domestic violence; however, the police may advise the victim to go to Family Court and ask the Judge to issue an Order of Protection. Both the New York State Criminal and Family Courts have concurrent jurisdiction over certain domestic violence offenses. The difference between the procedure in these two courts is that in Family Court, you, as the plaintiff, are a party to the process, and you have control of the lawsuit against the defendant (the person you accuse committed acts of domestic violence against you). violence). at any time you can reach an agreement with the defendant as closed; case, or you can just pick up your petition. If the police refuse to arrest the person you complained about, you can file a petition with Family Court. The Family Court Judge has jurisdiction to issue an Order of Protection (full or limited), which will have the same effect as an Order issued by a Criminal Court Judge. For the past few months, due to the Coronavirus pandemic, Family Court has operated largely virtual, with court hearings via Skype or Microsoft Teams Meetings, and filing petitions via email or Electronic Document Delivery (" EDDS"). nine0003

The Domestic Violence Petition, in the absence of agreement by both parties, will be decided by the Family Court Judge at the conclusion of the hearing on the merits. The New York State Family Court has jurisdiction over other types of petitions, such as Child Visit and Residence, Child Support, Neglect of a Child, Establishment of Paternity, etc.

Sometimes, after an arrest and first appearance in criminal court, a Domestic Violence Petition is also filed in Family Court, requiring the client to attend both courts for both of the relevant cases. If there are minor children in the family, the Criminal Court will often include such children in the Protective Order, however, making an exception for Family Court modifications of the order. In such a case, the defendant who wishes to maintain a relationship with his children must go to Family Court and register a child visitation petition, asking the Judge to schedule visits to the children. Depending on the circumstances of the original case that led to the Order of Protection, the judge may allow limited visits, supervised visits, or even supervised visits by a welfare agency. nine0003

legal guardianship

3. I can't find my spouse, can I file for divorce?

Personal delivery of original divorce papers (Summon Notice or Summons of Complaint) is required by law. However, in the event that the plaintiff (the person initiating the divorce case) cannot find his/her spouse, the plaintiff must obtain court permission for alternative delivery of documents by filing a written petition with the court.

4. When am I officially divorced?

The parties to a divorce proceeding are considered divorced from the moment the judge signs the divorce decree. In the case of a divorce by consent, if a postcard has been filed in advance, the court will notify the final divorce by mail. In the event of a judicial divorce, although the judge may verbally announce during the trial that the parties are divorced, the divorce is officially finalized after the parties' lawyers have submitted the documents to the court and the judge has signed the divorce decree. nine0003

5. What is custody and how is the issue of child custody after divorce resolved?

There are two types of custody – legal custody and physical custody. Legal custody essentially means the right to make decisions. During marriage, both parents have rights to raise the child. This includes the right to make decisions about all aspects of a child's upbringing, including religion and education, as long as the parent's decisions do not pose a threat to the child. After a divorce, one of the spouses who has received legal custody of the child makes all decisions independently. You can consult with the other parent, and this is even recommended, however, if you are unable to agree with the other parent or do not wish to consult, you can make your own parenting decisions. Note that the court can always review a parent's decision to raise a child to ensure that the decision is in the best interests of the child. Joint legal custody essentially means that both parents have equal rights to make significant decisions that affect their children's lives. If the parents agreed to joint legal custody, then they essentially agreed to set aside their personal differences in order to effectively raise their children. If the parents are unable to agree on legal custody, then such a decision will be made by the court. nine0003

Post-divorce custody means the right of a parent to have a child permanently reside with that parent in the same family and be responsible for their child as long as they live with that parent. If one of the parents received the right to live with the child after the divorce, then the other parent is likely to receive the right to visit the child (visitation). If the parents cannot agree on a visitation schedule for the child, the court will provide such a schedule. Sometimes it is possible to have a joint right of residence of a child with parents in turn in equal shares (joint physical custody). In this case, the child will live half the time in the family of one parent, and half the time in the family of the other. nine0003

6. Will I have less time to visit my child if the other parent has exclusive legal custody?

Optional. Legal custody means the right to make decisions, not the right to spend time with the child. The parent with exclusive legal custody has the right to make most parenting decisions if both parents cannot agree on that decision. If the parents agreed to joint legal custody, then they essentially agreed to set aside their personal differences in order to effectively raise their children. Each parent in this case has equal rights to make decisions regarding the child. Regardless of whether your spouse has exclusive legal custody or both of you, you still have the opportunity to see your child as much as his schedule allows. Visitation of a child is usually independent of legal custody. nine0003

7. How is child support calculated?

New York State offers a formula for calculating the amount of child support payable by a parent as specified in Family Code section 240(1-b). This is a rather complicated article of law that must be read and interpreted carefully in order to accurately calculate the amount of child support. Usually, after the allowed deductions from the parent's total earnings, a certain percentage is applied to the balance of earnings to calculate basic child support. The percentage depends on the number of dependent children under 21:

17% per child, 25% for two children, 29% for three children, 31% for four children, and 35% for five or more children;

It is necessary to carefully and carefully interpret the article of the law in order to accurately calculate child support, as there are many factors and conditions prescribed in the law that affect these calculations.

8. Who pays child support?

Generally, the parent with whom the child does not live most of the time will pay child support to the other parent. nine0003

child support in New York

9. Will I be able to pay less child support than is legally allowed?

The best chance to achieve this is to negotiate a reduction in child support as part of a common agreement between the parties. Do not forget, however, that the other party is not obliged to agree to this. Only in rare cases does the court find reasons not to apply the formula provided by law.

10. What if the children spend a significant part of their time with me, or even 50% of the time? nine0009

Once again, if you are unable to negotiate a reduction in child support with the other party, it will be extremely difficult for you to persuade the court not to apply the statutory formula. To illustrate this, note that even if the parents spend the same amount of time with the children, there is case law stating that the parent with the higher income counts as the parent not living with the child for purposes of calculating child support, and such parent would have to pay formula support! ! This shows how much more beneficial it is for clients to take good faith negotiations seriously as the best way to resolve a dispute. nine0003

11. Until what age should a parent support a child?

In New York State, a child is entitled to parental support until the age of 21, unless he/she begins independent living earlier. If a child chooses not to attend college and instead joins the military or starts working full-time, then parental support ends when the child reaches 18 years of age.

12. Will a child be eligible for support if she stays in college after her 21st birthday to complete her studies and earn a bachelor's or graduate degree? nine0009

No. If child support continues after his 21st birthday, it will only be as a result of the agreement of both parents. The law does not require parents to continue supporting children after they turn 21, regardless of whether higher education is completed.

OK with this parent? nine0009

The Court takes the issue of changing the residence of children very seriously. The main criterion for the court is the issue of the welfare of the children. In attempting to make such a decision, the court will ask the question: "If such a change in the place of residence of the child is allowed, will it significantly change the nature of the relationship between the child and the parent who does not move to a new place with him?" The court will try to find out as much as possible about the nature of the relationship with the parent. (For example, how often do you see your children? Do you go to their school events? Do you meet with your children during the school week? Do you make use of all the visits that you have assigned to your children? How good are your visits to children?) will evaluate all reasons for the expected relocation of children to determine whether the parent with whom the child lives has explored all possibilities to avoid such a relocation. The distance over which the proposed move is made is also an important factor. Is this the distance that will prevent you from regularly visiting your children? The latest trend in jurisprudence is to generally allow moves up to 2 hours by car from the children's previous residence (assuming the parent with whom the children live generally has a good reason for the move). These decisions were determined by the circumstances, so don't try to reassure yourself ahead of time based on what the court has decided in other cases. nine0003

14. Will my spouse be required to pay me alimony or maintenance after the divorce, and if so, for how long?

A recent change to the law that went into effect in 2016 provides for a formula on how to calculate temporary alimony, as well as a recommended formula for calculating permanent alimony after divorce and how long it lasts. There are also additional factors that the court must consider when determining the amount and duration of child support. nine0003

Here are a few factors that are considered the most significant:

  • length of marriage; the age and state of health of each spouse;
  • present and future earning potential for each spouse;
  • your opportunity to become financially independent;
  • reduced or lost earning opportunity due to denial or delay in education, training, employment, or career development during marriage; nine0088
  • having children in your home;

This is a complex decision and will be influenced by many factors.

15. Can my spouse evict me from our home?

Unless you have physically, verbally, or mentally abused your spouse, or have already found another place to live, it will be extremely difficult for your spouse to evict you from their home. Unless you agree to move out voluntarily, your spouse will have to file a petition with the court for you to be evicted, and the court will give you an opportunity to respond to it. nine0003

16. Can I and my children continue to live in our house after the divorce?

Assuming that the children will be living with you, and if you have a child under 18, the court will generally try to keep the child in the home, neighborhood, and school to which the child is already accustomed, assuming that the child is fine in that environment, and also implying that financial circumstances allow it.

17. Am I entitled to a share in the value of the house, even if the title is not in my name?

If the house was purchased during the marriage with funds earned during the marriage (regardless of which spouse earned the money), then it is likely that you will be entitled to a share in the price of the house, even if the house is not registered on you. There are many factors to calculate the size, value and percentage of this share. nine0003

18. I bought our house before our marriage with funds I bought before our marriage. Will I have to share the cost of my home with my ex/ex-spouse?

Usually not. However, if the house increased in value during the marriage as a result of your spouse's efforts, or as a result of a joint investment in the house, then your spouse may claim a share of the excess price during the marriage. Please note that if you put your spouse's name on the home title deeds, this may cause your spouse to be able to claim a share of the total value of the home. nine0003

19. Will the court force me to sell my house?

If there are no children, and assuming the house is jointly owned, the court will allow each spouse to buy out the other spouse's share. If neither spouse has the ability to buy out the other's share, or is not interested in doing so, the court may order the sale of the house and divide the proceeds from the sale at the discretion of the court.

20. Credit cards: Should they be cancelled?

If you think your spouse will use credit cards beyond justified living expenses, consider closing the account. Most accounts can be closed by either paying off the debt or transferring to another credit card. If your name is first on the account, you can achieve the same goal simply by removing your spouse's name from the account. The final liability for debts will be determined by the court or by agreement. In most cases, it is recommended that you inform your spouse of your actions (after the accounts have already been changed) so that he/she is not unpleasantly surprised or embarrassed when the payment is unexpectedly declined. nine0003

21. Do I have to withdraw money from all joint accounts to protect myself from my spouse taking or hiding the money?

The courts do not approve of either spouse withdrawing all the money from a joint account or withdrawing money without good reason. The husband should think seriously before withdrawing money. Do not forget that the court has the right to demand liability from the spouse if it is proved that he squandered or hid the joint funds.

22. If I own a business or share in a business, will my spouse get a share of the business? nine0009

If your business was created during your marriage, or you acquired an interest in a business during your marriage, then your spouse will likely be able to claim a portion of that business or a portion of your interest in the business. If you acquired the business before marriage, or you acquired an interest in the business using funds from an inheritance or a gift, then your spouse may claim an excess (if any) of the value of the business that occurred during the marriage if you or your spouse is actively contributed to the value of the business. Usually an accountant is hired to do this calculation and there are many factors that go into this calculation. Once the overall valuation of the business has been made, it is calculated what percentage of that value should be used to calculate the spouse's share. There are many factors the court will take into account to determine this percentage, including but not limited to the length of the marriage, your spouse's contribution to the business, family earnings or assets invested in the business, etc. nine0003

23. Can my spouse claim the estimated value of my professional license or higher education diploma?

For divorces initiated before 2016, by law, if all or part of a professional license or higher education occurred during marriage and was paid for by joint family funds, then it is likely that the spouse will be able to claim a portion of the assessed value of such a license or diploma. Following recent changes to the New York State Family Code that went into effect in 2016, the court must no longer consider increased earning potential due to a professional license, college degree, celebrity status, or career advancement as part of a family partnership. assets. However, when deciding on an equitable division of joint marital property, the court must take into account each spouse's direct and indirect contribution to enhancing the earning potential of the other spouse. NY Dom. Rel. L. § 236B(5)(d)(7). nine0003

24. Which courts can hear divorce, custody and alimony cases?

The Supreme Court has exclusive jurisdiction over divorce cases; however, Family Court has concurrent jurisdiction over custody, visitation, and child support matters. If a person wants to get a divorce, he needs to fill out the original documents in the Supreme Court. If the child's parents are not seeking a divorce, or are not married at all, and want to sue for domestic violence, custody, visitation, or child support, they should file an application in Family Court. nine0003

25. What is a juvenile delinquency trial?

This is a New York State Family Court lawsuit involving a juvenile delinquency case between the ages of 7 and 16. When such a minor is arrested in New York State, he/she may obtain a subpoena from the police in Family Court in the county where the alleged offense was committed. On the other hand, when the allegations are serious enough and/or the minor child has had previous police referrals, the child may be detained overnight in a special detention center for children and brought to Family Court the next day when the court is open. nine0003

When a child comes to court with a parent or guardian, he/she and the parent will be interviewed by a probation officer and, depending on the charges, previous criminal convictions, the wishes of the victim and their parents, if the victim is a minor, the case may be referred to probation department. In this case, the petition against the juvenile delinquent is not filed and the child agrees to follow the rules of the probation department for an initial period of up to 60 days. The child must attend school, report to the probation department when required, write an essay and/or do community service under the direction of a probation officer, and also have no new drives. If the child complies with all this, the case will be dismissed. nine0003

If a juvenile is charged with a felony, or if the victim wants the case to continue, the New York City Law Department, which in such cases acts as a prosecutor, will file a petition against the juvenile delinquent, and the child will be required to appear before judge. A case on juvenile delinquency is similar to a criminal case of an adult in a criminal court, however, there are significant differences: there is no bail for the release of the defendant to freedom for a minor - either he is left in custody or released without bail on bail to the parent / guardian; no right to a jury trial, instead a court hearing before a judge; no criminal conviction - instead, recognition as a juvenile delinquent; punishment options also vary, including case closure, conditional closure, suspended sentences of up to 2 years, or detention with varying degrees of security for an initial period of up to 18 months. For the most serious crimes allegedly committed by minors 13 years of age or older, the prosecutor has the option to refer the case to an adult criminal court. nine0003

26. What is marriage annulment and how is it different from divorce?

A man and a woman must be legally capable of entering into a legal marriage. If the parties are not authorized to enter into a marriage, such a marriage can be annulled, that is, declared invalid. Grounds for marriage annulment are untraceable disability, minority, lack of consent, or consent obtained through fraud or intimidation, and incurable mental illness for five years. nine0003

  • If one of the spouses is terminally incapable of sexual activity, the marriage can be annulled.
  • Both parties must be over 18 years of age to marry without parental consent. A marriage between persons under the age of 18 may be annulled, at the discretion of the court, if the spouse under 18 wishes to annul the marriage.
  • If, after marriage, either partner becomes terminally ill for 5 years or more, the marriage may be annulled. However, a healthy spouse may be required to maintain a mentally ill spouse for life. nine0088
  • The parties must knowingly consent to the marriage. A marriage can be declared invalid if either party consented to the marriage as a result of violence or threats from the other party, or if either party did not understand the meaning and consequences of marriage.
  • A marriage may be annulled if the consent was obtained by fraud, provided that the fraud was such as to deceive an ordinary reasonable person and was essential to obtain the consent of the other party. Fraud must be at the heart of the marriage contract. Only the injured party can annul the marriage on the grounds of lack of consent. nine0088
27. What is a declaration of invalidity of a marriage and how does it differ from annulment?

Unlike an annulment, where a marriage can be declared invalid, some marriages are invalid from the moment they are contracted. Such marriages include incest and bigamy. In the case of incest, this is a marriage between ancestors and descendants, brothers and sisters (including half blood). In the case of bigamy, one of the parties is already married to another person.

For more information, please contact our company. nine0003

Tel 516-505-2300

Te l 718-368-2800

Email SharifovR@LawfirmSR. com

What is guardianship?

In Russia, citizens who need guardianship include minors, that is, children under 14, as well as persons recognized by the court as incompetent. We are talking about people who, due to a mental disorder, cannot understand the meaning of their actions or control them. This is stated by the Federal Law "On guardianship and guardianship". Based on the document, citizens appointed by the body of guardianship and guardianship "are the legal representatives of the wards, and perform on their behalf and in their interests all legally significant actions."

Guardianship is aimed at protecting the interests of the listed categories of citizens, as well as the very possibility of declaring a citizen legally incompetent. This was also emphasized by the Constitutional Court in the framework of Resolution No. 15-P dated June 27, 2012 “On the case of checking the constitutionality of paragraphs 1 and 2 of Article 29, paragraph 2 of Article 31 and Article 32 of the Civil Code of the Russian Federation in connection with the complaint of citizen I. B. Business". nine0003

How is guardianship different from guardianship?

In addition to guardianship, there is also guardianship, under which adolescents aged 14 to 18, as well as persons with limited legal capacity, can fall. Such people cannot be fully responsible for their actions. This category has more rights than minors and the incapacitated. For example, they can independently perform small household transactions and actions provided for by law (dispose of their own income, etc.). However, in other cases, they are obliged to assist the trustee. nine0003

It turns out that the guardian has more rights and obligations than the trustee, and therefore he bears a great responsibility.

Who can become a guardian or custodian?

The main requirement for a candidate is full legal capacity. And since it comes from the age of 18, the guardian must be of age. The law also establishes a list of restrictions. Guardianship cannot be issued by persons:

  • deprived of parental rights;
  • having an unexpunged or outstanding conviction for an intentional crime against life or health; nine0088
  • who did not agree to become a guardian.

When it comes to guardianship of young children (under 14), additional restrictions are set. Future guardians must undergo special psychological, pedagogical and legal training, as well as prove that they are in a bisexual marriage. Those who have registered a same-sex marriage in the territory of another state will not be able to arrange guardianship.

Arranging child custody

This process is supervised by guardianship authorities. To find out all the details of the procedure, you must contact the district office. The state is interested in ensuring that children are not left unattended, are not placed in orphanages and boarding schools, and therefore, most likely, those who wish to arrange guardianship will be met halfway and will be helped in every possible way.

The candidate needs to write an application, collect documents confirming, among other things, the passage of special training, and in case of a positive answer, sign an agreement. nine0003

How can I get guardianship of an elderly incapacitated person?

The algorithm is the same as for children - the guardianship and guardianship authority will also deal with the issue of guardianship. However, there are also differences. Thus, custody of an elderly or adult person does not always involve the joint residence of the guardian and his ward. This issue is decided individually, but cohabitation, of course, is welcome. It is much easier for a guardian to fulfill his duties and provide supervision, especially when it comes to a pensioner who, most likely, has a sufficient number of health problems. nine0003

If cohabitation is intended, the consent of all members of the guardian's family living with him in the same dwelling, including children aged 10 years, must be obtained.

How to get paid guardianship?

There are two types of guardianship:

  • free of charge;
  • paid.

In the first case, nothing is paid to the guardian. Paid guardianship can have quite flexible conditions, which are fixed by the contract. In accordance with Article 16 of the Federal Law “On Custody and Custody”, remuneration can also be paid at the expense of third parties, from the income from the property of the ward (no more than 5% and only if he is already an adult), as well as from the budget . nine0003

Features of the legal status

The guardian has an unlimited range of powers - he represents the interests of the ward in any relationship, no matter what is discussed. Moreover, this rule applies even when registering custody of a minor with living parents. If the ward is a child, then the guardian acts as a father or mother. However, in some cases notification of guardianship authorities is required. They can also establish restrictions on the actions of the guardian or, conversely, oblige him to perform any actions. All this is recorded in the act on the appointment of a guardian or custodian, or in an agreement on the implementation of guardianship or guardianship. nine0003

What documents are required for registration of guardianship?
  1. Written statement of consent to the establishment of guardianship.
  2. Documents of the guardian: proof of identity, proof of income, no criminal record, state of health (medical certificate in the form established for persons wishing to obtain guardianship), marital status and the right to use the living quarters.
  3. Consent of family members of the future guardian, including children under 10 years old (provided they live with the guardian in the same territory) to live together with the ward. nine0088
  4. Documents of the ward: identification, income, from the place of study or work, medical certificates.
  5. Documents confirming kinship, if the candidate is a relative.

A complete list can be found on the State Services portal, which contains clarifications on the design and number of copies of documents. You can apply for guardianship there.

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