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Family and Juvenile Law

It’s something that most parents do not want to think about - “What happens to my child if I am no longer able to take care of them?”  This article stresses why you should take action and plan for the worst case scenario to actually give you peace of mind that your wishes will be known.

Life changing events typically prompt one to think about altering legal documents such as life insurance beneficiaries, bank accounts and payable on death documents, retirement beneficiaries, wills, trusts, powers of attorney documents, etc.  Life changing events may include births (including adoption), death, marriage (or re-marriage), divorce, and change in financial status.

Often, clients fail to take action when life changing events occur due to the assumption that the documents or designations will be difficult to change, alter or create and if legal work needs to be done, it may be costly and time consuming.  However, to worry about the unknown in regards to the care of a child is unnecessary if a parent is proactive and plans for unknowns.

Create a Last Will and Testament

It’s a responsible thing as a parent to create a Last Will and Testament when your child is born.  It is also a good idea to update your Will when life changing events occur.  In the Will, parents can designate a legal guardian for the minor child.  

North Carolina law provides if both parents are deceased then a Petition for Guardianship of a minor child may be filed with Superior Court-Special Proceedings Division in an attempt for the Petitioner to be named as the legal guardian for the child.  A Guardian ad Litem is appointed by the court as a temporary representative for the minor child to investigate the Petitioner’s request to the Court.  The Guardian ad Litem speaks for the child’s best interest and wishes so the child’s needs are heard without unnecessarily exposing them to the Court. The Guardian ad Litem is also an investigator for the Court and is only released from her duties as the Guardian ad Litem upon the court’s appointment of a Guardian for the minor.  

A named Guardian for the minor child would thereafter receive “Letters of Appointment” and a Court Order which is used to prove the legal ability to act for the minor child until the child reaches the age of majority at age eighteen (18).  A Court appointed Guardian is authorized to make arrangements for the legal care, custody and control of the minor child as would a natural parent and be thereafter responsible for the educational, religious, legal, medical and day-to-day decisions for the child.

The intent of a parent is memorialized in her Will and shown to the court as probative evidence of the wishes of the parent for her child. The Court must vet the Petitioner’s motives and ability to act as the child’s legal guardian but the parent’s wishes are more commonly adopted by the Court and help the named Guardian in their step to complete the legal appointment and obtain the necessary legal paperwork.  Parents who pass without a Will leave the appointment of a Guardian of a minor child up to the fate of a Court without any guidance from the parents.

Family Law and One Living Parent of a Child

If one parent dies and the other parent is alive, the parent living would have custody of the child absent a court order determining child custody to a non-parent for reasons such as unfitness of the parent, willful absence of the parent such as jail or deportment, unwillingness of the parent to act as a custodian, etc.  While alive, if the legal parents had been separated there might have been a legal contract or Court Order establishing custodial terms for the co-parenting. If the primary parent having custody under those legal documents dies, the living parent has standing to first act on behalf of their child as the now primary parent.

A parent’s constitutional right to act for their child’s well-being would trump any moving party (potential Guardian named in a Will, family member, close family friend, foster parent, etc.) in a court proceeding. This type of action would occur in District Court as a family law matter related to child custody.  A Guardian ad Litem is not typically appointed by the courts to investigate in this setting.

5 Steps to Choosing a the Right Legal Guardian for Your Child

So, how does a parent determine who is the right person to act for their child if they are unable? 

First, have a conversation with the other parent about planning for the future if you haven’t already put some of these legal documents in place. Discuss what documents need to be updated or established. 

Second, define what you would look for in a potential Guardian for your child.  Think of what needs your child has, not only at their current age but through to early adulthood. Pretend you have the conversation with your child about who they would want to care for them if you were not able.  

Third, make a list of potential Guardians.  Only list the contenders based on a fit with the needs of your child and the potential Guardian’s morals, values, personality, ability to parent, and other characteristics or traits that are important to your family. The potential Guardian does not have to be a relative.  Consider if the candidate is financially stable but don’t cross the person off the list if there is a question here; you can invest in life insurance or provide otherwise for the child if the Guardian will need financial assistance.

Fourth, have a serious conversation with the candidates still on your list about the role of a Guardian.  After these conversations you might cross some candidates off your list and the designation order may become clearer.

Finally, memorialize you decision with a legal document.  The Guardianship provision for the minor child would be in a Will but also could be referenced in a Trust and/or Power of Attorney.  Tell the Guardian what legal  document(s) they are named in and provide the Guardian with a true copy of the legal document.  Instruct the potential Guardian to keep the document in a safe place such as a fire-proof safe at their home or in a safety deposit box at a bank.  Also give the potential Guardian a certified copy of the child’s birth certificate and copy of the child’s social security card. These items can be difficult and time-consuming to obtain by a non-parent but are helpful if the time comes to request legal Guardianship with a Court.  Lastly, if your child is old enough to discuss death and a potential Guardian tell them who would be there for them if his parents could not (in an age-appropriate manner conducive to your child’s maturity).

Call Wilmington, NC Family Lawyers for Help with Tough Decisions

No parent wants to think about someone else raising their child.  To establish peace of mind, a parent should plan for the unknown. Take the time to walk through the above five (5) steps so that you protect your child. You can take steps now to ensure that your child receives the future you have imagined for them.  If you need assistance in reviewing your current documents or preparing documents to name a Guardian for your minor children, call Craige & Fox, PLLC today at 910-815-0085.

On October 14, 2014, North Carolina began recognizing same-sex marriages due to a federal court decision finding the state's denial of marriage rights to same-sex couples unconstitutional. North Carolina had previously denied marriage rights to same-sex couples by law since 1996.

With this new and exciting shift in the law comes state’s rights to married same-sex couples, one of which includes the availability of same-sex couples who are married to adopt in North Carolina.

Some civil district courts have allowed second-parent adoptions by same-sex couples in the western and central part of the state until 2010 when the North Carolina Supreme Court ruled 5-2 in the case of Boseman v. Jarell that the state law did not permit adoption by a second unmarried person regardless of the sex of those involved. The plaintiff in that case garnered much attention as Julia Boseman, a female  gay member of the North Carolina State Legislature. In June 2012 other same-sex couples sued in federal court seeking second-parent adoption rights. In 2013 the lawsuit was amended to challenge the constitutionality of the state's denial of marriage rights to same-sex couples. The shift in the law occurred on October 14, 2014 when U.S. District Judge Osteen ruled for the Plaintiffs.

Current North Carolina Adoption statutes allow our state’s citizens to adopt via direct placement, agency placement and stepparent adoption. Originally adoption was allowed by a married man and woman or by a single parent.  Same-sex couples, while even validly married by another state, were not allowed to adopt in North Carolina; however, one partner could adopt as a single parent and later extend some rights in loco parentis to a partner such as a power of attorney or custodial rights. Some civil district courts have also given legal standing to a same-sex partner in custody actions and granted custody rights to the other partner, whether a biological parent or not, upon the parties’ separation. 

The process for a same-sex stepparent adoption will follow the current process under existing Adoption statues (North Carolina General Statutes § 48, Article 4) and forms for a stepparent adoption. This can occur when a single parent has already secured an adoption for the minor child. The same-sex parties must already be validly married and have a marriage certificate.  

The Petitioner will be the spouse of the partner who has legal custody of the minor child. The spouse with legal custody of the minor child must consent to the adoption and will retain all legal rights to the child. The adoption process will still be mostly transactional in nature with a Clerk of Court being able to issue a Decree for Adoption if it is found by a preponderance of the evidence that the adoption is in the child’s best interest and 90 days have passed since the filing of the petition, unless the timely requirement is waived for cause. It is only necessary for a judge to hold a formal hearing if the Petition to adopt a minor stepchild is contested.  

The process for adoption via same-sex couples through direct placement or agency placement is still unclear at this time by our Courts. Currently these adoptions require consent, relinquishment, and/or  termination of parental rights by the living biological parents to the petitioner(s), even if one biological parent is an unknown parent. Fathers may still execute pre- birth consent to adoption.

If you or someone you know is interested in speaking with an adoption attorney regarding married same-sex couples and Second Parent Adoptions, please do not hesitate to contact Wilmington, NC attorney Ashley Michael at Craige & Fox, PLLC.

Celebrities Gwyneth Paltrow and Chris Martin have introduced a new phrase for the Hollywood Divorce called “conscious uncoupling,” but they are actually talking about using Collaborative Law to co-parent their minor children after separating.  This new catch phrase might start a trend across the country.   Husbands and wives who have decided to end their marriage by working together, like Gwyneth and Chris, may wish to cooperate and manage their separate households by communicating in a respectful manner throughout divorce lawyers and agreements.  Spouses may successfully resolve divorce issues, including custody, spousal support, division of martial estate-assets and debts, and payment of child support by using Collaborative law.

Collaborative Law in North Carolina

Collaborative Law is a recent trend in North Carolina, but it is not a new method for citizens to use in the areas of Domestic or Family Law. North Carolina enacted statutes in 2003 (NCGS §§ 50-70 through 50-79) which established collaborative law as an alternative to the judicial system making decisions in marital issues. Collaborative Law provides the framework for a husband and wife to discuss their wishes through interest-based negotiation using their own  voices. Attorneys help guide the husband and wife and present their needs to one another. The husband may have his own attorney and the wife may have her own attorney.  The end result is the parties take control over the outcome of the separation and dissolution of their marriage, not a Court and/or a Judge.

 A collaborative outcome leaves individuals feeling more empowered about the conclusion of the marriage since the husband and wife reach decisions by agreement rather than a Court ordered decision made by a Judge.  Each party may also be more likely to follow through on the terms of the agreement since the husband and wife made the decisions regarding separation of assets, payment of debts, and custody and support of the children.

Collaborative law may also reduce legal fees since time and effort will be spent reaching agreement, rather than staking out positions and arguing in Court.

Collaborative law is defined in the North Carolina General Statutes §50-71(1) as:

A procedure in which a husband and wife who are separated and are seeking a divorce, or are contemplating separation and divorce, and their attorneys agree to use their best efforts and make a good faith attempt to resolve their disputes arising from the marital relationship on an agreed basis. The procedure shall include an agreement by the parties to attempt to resolve their disputes without having to resort to judicial intervention, except to have the court approve the settlement agreement and sign the orders required by law to effectuate the agreement of the parties as the court deems appropriate. The procedure shall also include an agreement where the parties' attorneys agree not to serve as litigation counsel, except to ask the court to approve the settlement agreement.

Should parties voluntarily and willingly use collaborative law to create a binding legal contract with terms for separation that they agree upon, the only reason they need the Court (barring the later enforcement or contempt of the legal agreement) is to enter a Judgment for Divorce at the appropriate time. 

Collaborative Law Uses in Family Law and Domestic Matters

Sometimes solution-based sessions result in uncommon scenarios (e.g. agreeing to tell your children together you are getting divorced and agreeing on how and when to do so).  Agreements may be reached  that work for each spouse’s lifestyle, culture, morals, ethics, and/or values. 

To successfully implement collaborative law in domestic matters you need each party to choose an attorney trained in collaborative law.  The husband and wife and their attorneys meet and decide how to build their “team” based on the need, if any, of other professionals to assist the parties in informed decision-making.

Other professionals might be a financial analyst, child specialist, divorce coach, or mental health professional. The parties choose the legal issues that shall be addressed, assign homework such as document gathering, deadlines for collecting and sharing necessary information between each other, and determine a timeline for structured conference sessions in which to start reaching agreement. The parties determine the need for content of the sessions with the attorneys acting as a guide for each party to share their needs and interests; not just discuss goals and wants.  Parties will make informed choices on how to end their marriage, split finances and the marital estate, pay spousal support, pay child support, custody, and any other outstanding or unusual issues.  

Mediation vs. Collaborative Law

Collaborative law is sometimes confused with mediation.  In mediation, the parties work with a neutral third party who shares the voice of each party and shuttles back and forth between the parties who are usually kept in different rooms with their respective attorneys.  The mediator attempts to help the parties reach any common ground within legal topics already pled in a lawsuit pending with a Court.  While the mediator is sharing information between each party and attempting a resolution some information may be lost or misconstrued and in turn cause the parties to back away from resolution. 

Collaborative law differs from mediation in that the parties speak directly to each other rather than through a mediator.  This type of negotiation fosters each parties own goals and positions instead of arguing about interests and needs. 

Mediation is also a court-ordered process which adds to the cost of litigation.  Should the parties not agree in mediation how to resolve their legal claims then the case is calendared for Court with a judge. 

Mediation and collaborative law are alike in that both are confidential, both offer a safe space to explore ideas between the parties on how to settle their domestic disputes, and both offer the ability to control the outcome of your legal issues.

Additional benefits of collaborative law instead of traditional Divorce litigation or mediation include less emotional strife between the parties and a faster resolution of conflict.  Studies show that children of parents who are exposed to the court process, whether  by participating in court ordered evaluations or by testifying, by exposure to the parents legal stressors, have difficulty later in sustaining a positive relationship with their parents and others.  In collaborative law the husband and wife build their team to include a child specialist and the child will have a voice during the resolution of the divorce.

Collaborative law is not for everyone and parties must commit to communication, be responsive, be open and honest, abide by timelines, collect and share information, and be willing to do all of this in mostly face-to-face sessions.  It can be a difficult process to voice disappointment, anger, sadness, happiness, and many other emotions to your spouse. It takes active listening in order to attempt to collaborate on an agreement that meets the needs of husband, wife, and children.

The Only Collaborative Law Professionals in the Wilmington, NC Area

The only practice group of trained collaborative law professionals in the Cape Fear area is Coastal Collaborative Colleagues. Ashley Michael is a member of Coastal Collaborative Colleagues and also acts on the Board of Directors.  Coastal Collaborative Colleagues is a nonprofit, interdisciplinary group of professionals committed to “doing divorce differently.”  Check out the members of the group, their mission statement and more about Collaborative Law at www.coastalcollab.com and contact Ashley Michael at This email address is being protected from spambots. You need JavaScript enabled to view it. for assistance

Not all Domestic Law attorneys encompass Adoption Law in their practice. Based on her compassionate spirit, diligent work ethic, and strong sense of family, Adoption law is a natural fit for
Ashley Michael’s law practice. This article will provide a brief outline of North Carolina’s laws surrounding Adoption in order to reach your goal of building a family.

In North Carolina there are 5 types of adoptions: (1) Agency (otherwise known as public adoption); (2) Direct Placement; (3) Stepparent; (4) Relative; and (5) Adult Adoptions. Not included in the 5 types are Interstate Adoptions  (ICPC) and International/Foreign adoptions (Re-adoption) outside of North Carolina. The adoptive child’s facts and past dictate the adoption type and process, contents of the adoption packet and timeline to reach your goal of a successful adoption.

Public versus Private Adoptions: It is a common assumption that private adoptions are expensive; however, there are other ways to extend your family besides going through the state’s foster care system.

Public Adoptions:

Agency Adoptions occur when an adoptive family seeks out a child for adoption and uses a state welfare agency or becomes a licensed foster parent/family. There is very little control or decision making in this process for the foster family and typically when a child becomes available you must act and have your home ready to accept the child. Generally there is no charge for an attorney as the state pays the fee for the adoptive parents. The adoptive parents, while fostering, usually collect money from the state/county for their services to house and care for the child.

The ultimate goal of the placing agency is reunification of the child with their parent or a blood relative, so fostering a child can be highly emotional. Most of the time, the foster parent(s) is(are) providing a safe haven for the child while the parent(s) is(are) working on reunification efforts; this can take a few months but typically lasts one to two years. If the child is placed back with their parent(s), you do not get the chance to adopt the child. Also, while the child placed in your home might be perfectly happy, healthy and loving, the children taken into custody by the state welfare agency have been removed for a reason and that child might have medical, educational, or mental  health issues as a result of things which happened to them in their prior environment.

Contact your local Department of Social Services Child Protection Services division in order to find out more about class cost, registration, and training. It is an amazing and selfless action to foster a child.

Private Adoptions:

1. Direct Placement Adoptions occurs when the biological parent(s) and the potential adoptive family have already connected (found each other and are interested in the adoption process). When Direct Placements derive consent to adopt from both biological parents to the intended adoptive family, the adoption process is less costly, mostly straightforward and form driven. The adoptive family should hire an attorney to complete the legal forms for the adoption process with the Court. The biological parent(s) could work with their own attorney, represent themselves, or ask the adoptive family to pay for their attorney.

Direct Placement using an adoption agency for coordination can be quite costly. An adoption agency tries to locate a child and match the child with a family seeking adoption. Beginning rates estimate around $20,000.00. The adoption agency does not provide attorney services in their adoption rate and the prospective adoptive family must secure their own legal advice and counsel. It is suggested, even before contracting for services with the agency, to have an attorney working with the adoptive family to protect and advise them of the agency’s process.

2. Stepparent Adoptions occur when a biological parent has married another person who then petitions the court to adopt the child. Should the other biological parent execute a consent the legal process is less costly and also  mostly form driven. The stepparent should hire an attorney to complete the legal forms for the adoption process with the Court.

Please note, North Carolina law does not allow same-sex couples to adopt a child even if marriage was legal in the state it occurred.

3. Relative Adoption occurs when a family member is adopting and both biological parents consent. Only close kin blood relatives fall into this category. The relative(s) should hire an attorney to complete the legal forms for the adoption process with the Court.

4. Adult Adoption occurs when a person or married couple petitions to adopt a person over the age of minority (18). The adoptee as well as the biological parents must consent to the adoption. One example is when the adult has been declared incompetent; the adoptee is appointed a Guardian ad Litem Attorney to represent the adoptee’s best interest and will then consent to the adoption. The potential adoptive parent/family should hire an attorney to complete the legal forms for the adoption process with the Court.

International Adoptions: When one adopts in another country, North Carolina allows a Re-adoption which registers the foreign adoption to enable a birth certificate to be issued for the adoptive parents and adoptee in North Carolina. The child is adopted in their respective birth country under said country’s laws then adopted again in the home state of the adoptive parents under US law. This can involve the Embassy from the sending county, interpreting foreign adoption forms to English and having them validly notarized, US Passports and green cards. This is necessary so your adoptive child may take advantage of US citizenship status and reap the state's laws and benefits.

Interstate Adoptions: When a child born and/or domiciled in one state crosses state lines when being placed with their adoptive family you must work with both the child’s birth state and the adoptive parents receiving state to complete the adoption. Both states have to approve the adoption.

General and Additional Adoption Facts:

All Adoptions must go through the court system for approval. After approval by the Court (Judge or Clerk), the adoption file is sent to our state Attorney General’s Office, Adoption Division for a final audit and approval before indexing in our State’s Registrar system for the regeneration of a new birth certificate. The child’s original birth certificate is then sealed and removed from public records.

Usually only one attorney is involved in the adoption process although the biological parent(s) may also secure their own attorney. The adoptive family’s attorney communicates with the biological parents to draft and execute the legal documents for the adoption. The adoption attorney then prepares an adoption packet and files it in Superior Court. The attorney will work with a Clerk or Judge who ultimately issues a Decree of Adoption and sends the adoption file to Raleigh, Office of Vital Statistics and Records for final approval, indexing and the regeneration of a new birth certificate.

If one biological parent executes consent to adopt an adoption can still be obtained but there are more hurdles to master to clear the child for adoption. What can be time consuming and more costly to the legal process is locating a parent for consent or clearing the child for adoption if the other parent will not consent to the adoption. Sometimes the non-consenting biological parent contests the Adoption and the case must then be heard by a Judge. Additionally, an adoption matter may morph into a Juvenile Court action for Termination of Parental Rights in order to clear the child for adoption. A Judge will ultimately decide if the constitutional right to parent a child should be taken away from a biological parent so the child may then be freed for the adoption. Then the adoption legal process can continue.

Other difficult scenarios to tackle to clear the child for adoption are “putative fathers” and/or “unknown fathers.” Working with an attorney will ensure the adoption result will be steadfast in case a biological parent surfaces years later and attempts to obtain rights to the minor.

A child at age 12 and over must sign a consent to be adopted by the prospective adoptive person(s).

All NC Adoptions are considered “closed” and the records sealed by the Court.

Direct Adoptions and Stepparent Adoptions necessitate Department of Social Services involvement (or another licensed agency) who will be ordered by the Court to perform a pre and/or post-placement assessment. The agency also provides a Report to the Court with background information among other things which must be shared with the biological parent(s). This comes at a cost paid for by the Petitioner(s) who wish to adopt.

Regardless of the facts and circumstances in any adoption case, it would be most prudent to contact an attorney to complete the legal process. Even forms can be intimidating and without legal advice a lay person could miss an important step which could leave a window for a biological parent to contest the adoption and ask the courts for some relief; therefore, usurping your adoptees’ sense of security and permanence. Without legal direction your adoption could also be flagged during the audit process in Raleigh with the Office of Vital Statistics and not approved which leaves the adoptive parent(s) and child without a birth certificate until the error(s) can be resolved.

Adoptions can be mostly form driven within the Superior Clerk of Court in NC, Special Proceedings Division. While it is sometimes mostly a black and white process, it is extremely detail oriented and your clerk of court assigned to the Petition is not allowed to give legal advice. It is not recommend that parties seeking adoption enter Superior Court without attorney representation.

Should you decide the opportunity to adopt is right for your family, the experience and end result will present many rewards too vast to quantify throughout a lifetime. This blog is intended to educate and quell some misbelief that adoption is too difficult and/or expensive to consider. Do not let the legal process, cost or trepidation of navigating legal channels prevent you from giving the gift of a forever family to a child.

Collaborative Divorce is a reasonably-priced dispute resolution process established by North Carolina law for settling divorce and family law disputes outside of court. Ashley is a trained Collaborative Law  practitioner and a member of the only Collaborative Law practice group in and around the Cape Fear Area. Learn more about Collaborative Divorce and find out if it could be right for you at:

http://coastalcollab.squarespace.com/collaborative-divorce

 

North Carolina General Statutes-Juvenile Code

North Carolina General Statutes-Domestic /Family

North Carolina General Statutes-Adoptions

North Carolina General Statutes-Incompetency and Guardianships

North Carolina Child Support Collections  (you can estimate child support and run a child support worksheet-but check with an attorney for its accuracy)

Coastall Collaborative Colleagues - Doing Divorce Differently - Family Law Attorney Ashley Michael is a part of this group

International Academy of Collaborative Professionals:


Adoption services in/around Cape Fear Area:

      Children's Home Society of North Carolina

      This email address is being protected from spambots. You need JavaScript enabled to view it. (email address)

North Carolina Office of the Court: Cumberland County

Pro Se packet for filing Absolute Divorce.  Please note these documents would need to be tailored to your specific facts and filed in the county where you currently reside.

North Carolina Office of the Court: Wake County

Pro Se packets and information for domestic matters in our family courts.  Please note these documents would need to be tailored to your specific facts and the county where you are filing your lawsuit.



 

In working with an attorney you must choose one that meets your needs, you can trust, is cost-effective and which works with your personality and posture towards your legal matter. Clients in Family and/or Juvenile Law cases must engage in a lot of decision-making continually throughout their legal matter(s). It is possible at times that the attorney may give you “homework” in order to save money on legal costs, if the client so prefers. During your case the attorney and client can communicate in methods that are conducive to the client’s persona and preference. Usually the attorney will utilize email, mail, fax, phone calls and office appointments to communicate with the client. It is not always necessary to have face to face appointments. Ashley believes that while Family and/or Juvenile Law matters can be quite emotional and devastating they can also be handled with respect and integrity. She believes that an attorney and client must work together as a team to reach the client’s common goal(s).

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Contact our professional team today to learn more about our ethical, efficient, and effective legal representation services.

Craige & Fox, PLLC
701 Market Street
Wilmington, NC 28401
910-815-0085 Phone
910-815-1095 Fax

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