July 23, 2014 |
Mark Spencer Williams |
Divorce & Separation |
Today I watched men and women one by one trying to get a District Court Judge to grant them a divorce without the help of a lawyer.
Just prior to this, attorneys put their client’s on the witness stand, asked a few questions and got their clients divorced in just a few minutes. Attorneys also handled summary judgment motions where the clients did not even appear before the judge but the divorces were granted. Perhaps as many as 10 divorces done in less than 25 minutes.
And then came the Pro se litigants. Pro se is a Latin phrase meaning “for oneself.” When someone represents themselves without a lawyer in court, they are acting pro se.
These pro se folks were visibly nervous. When their name was called, the bailiff asked for copies of their divorce judgments and copies of their divorce certificate. If they did not have them, they were asked to leave. If they had them, the Judge would review them. At this point, nearly 4 of 5 were turned away because the paperwork was not in proper form. One of the gentlemen who sought a divorce protested to the Judge that this was his “second time” trying to get the divorce after having been there a few weeks ago. After reviewing his paperwork and finding it deficient, this man learned he would have to come again next week for a “third time.”
Another person could not finalize the divorce because the Separation Agreement and Property Settlement that was requested to be incorporated into the Divorce Judgment was not in the file.
In my opinion, the Judge properly handled these pro se folks. Some of their questions: If the Separation Agreement is not in the file, can I go ahead and just get divorced without having it incorporated? Judge: I know the answer to that but I can’t answer because that would be giving you legal advice. I suggest you speak with a lawyer. And that was the right answer from the Judge. This simple decision to incorporate or not could have significant positive or negative implications for the person seeking the divorce.
But the bigger issue is I saw individuals obtain a divorce who most likely had not filed an action for spousal support or equitable distribution. And when they thought they had “won” by obtaining that divorce, the truth is that they had lost big because by failing to bring these claims before the entry of the divorce they had forever waived their right to alimony and distribution of marital property (including pensions, military pensions, etc.).
While our Firm has posted information about a DIY Divorce, we strongly recommend you hire a lawyer instead to ensure you preserve your rights.
By hiring an attorney you may save yourself thousands of dollars simply by protecting your rights. You may also feel less nervous in court, may not even have to take time off from work to show up for court, and are far less likely to have to show up for court on more than one occasion.
Read A DIY Divorce Is a Bad Idea! »
May 3, 2014 |
Richard Forrest Kern |
Civil Law, Family Law, Land use, Zoning law |
As the local and regional food shed movement and the urban agriculture movements continue to grow, land uses once considered only for rural landscape are now sprouting up in urban and suburban communities. From nuisance law to zoning regulations; your desire to raise your own chickens for eggs or plant your own corn may require the advice and counsel of an attorney to help jump the hurdles.
A growing trend in the United States and North Carolina is farming by private landowners. Rural and urban landowners are doing more home gardening and backyard farming. Whether you are planting veggies, raising chickens for eggs or using goats for milk, there may be some legal problems with your farming endeavors.
Why are more people growing their own vegetables or raising their own chickens for eggs or dinners? There are several reasons why someone might want to farm;
Whether it is true or not, some people believe raising their own food is cheaper. It can be but it is not always cheaper;
Health is another reason; avoiding insecticides, herbicides, genetically engineered produce, and pesticides is a major reason for farming your own food;
Chicken eggs from your own chickens just taste better, so does a pork chop from your own pig and squash from your own garden; and
Farming can be used as a learning activity for children and a family bonding activity.
No matter what you are farming or why you are farming, there are many legal issues you need to keep abreast of when home farming:
Local zoning laws and ordinances: Many municipalities have restrictions on which and how many farm animals you may keep on your residential property. N.C. Gen. Stat. § 160A-186 grants power to municipalities to regulate or ban “domestic animals,” inside their jurisdictional limits. According to the grant of power a city may regulate, restrict, or prohibit the keeping, running, or going at large of any domestic animals, including dogs and cats. However, cities and towns that once banned outright chicken and other livestock are now reversing course. Raleigh, Durham and Chapel Hill all allow chickens. The Town of Carrboro allows chickens and goats. The Cary Town Council has authorized town staff to research and draft a proposed ordinance allowing up to eight hens on residential property. However, some communities still ban urban livestock. Check your local laws and zoning ordinances but be aware, some ordinances do not directly ban home livestock production but instead rely on a specific interpretation of their own ordinances to justify a de facto ban. Hire an attorney to review the ordinances with you and to determine if you may be qualified to seek a variance, special use permit or other legal avenue to meet your need to farm and the legality of your locality
Building laws and ordinance:. Building codes and/or ordinances may prevent you from building a chicken coop, a corral, or a barn. There may be set back restrictions, there may be restrictions on the size or type of building you can build for your animals. There may be types of construction methods that are not allowed. Again, see out a licensed attorney in your area to determine if there is an issue with your property and whether there is any recourse for you.
Home Owner’s Associations: HOA rules may ban you from keeping animals or even a garden on your property.
Nuisance and attractive nuisance: Before there were zoning laws and continuing through today, many opponents of urban farming focus on nuisance suits. They institute lawsuits over their concern about noise, odors, diseases, and sanitation problems stemming from improper care and maintenance of livestock. They also raise the argument that with urban livestock there is an increase of natural predators in the area that feed on them. Proponents of urban farming say that the keeping of livestock has benefits outweighing the potential negatives: in the case of chickens; pest control; free fertilizer for home gardening; egg production for home consumption; and the fun of a family pet. The urban farmer argues that chickens and goats and even pigs are not as loud and disruptive as dogs, odor is easily controlled with proper cleaning and no more concern than the odor of traditional pets. The Center for Disease Control has stated that it is safe to maintain small numbers of chickens at home. Arguments against urban livestock with respect to trespassing and destruction of property are without merit as they will be subject to animal control laws just like any other family pet and a well-designed coop or pen along with the urban environment will prevent predators from considering the area a buffet.
An attractive nuisance is something that poses a danger to children and lures them onto another’s property and into the danger. According to the Restatement of Torts section 339, which is followed in some jurisdictions, there are five conditions that must be met for a land owner to be liable for damages to a child trespasser. The five conditions are:
The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass, and
The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children;
The children, because of their youth, do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it;
The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
Swimming pools are classic attractive nuisances and as a result many cities and towns have ordinances that require fencing around them to prevent children from trespassing.
Children love animals, so, for the urban farmer, making sure the animals are properly penned is a must and will go a long way to protecting one’s self from such lawsuites. Otherwise, if a child comes onto your property and gets hurt you will be placing yourself at risk for a civil lawsuit.
Check your local ordinances for other permitting requirements and licenses.
No matter your goals for your backyard farm, make sure you follow the rules for your property otherwise you may find out that backyard chickens cost more than they are worth. If you need an attorney to review with you your local rules and restrictions with respect to your backyard farm, please call an attorney licensed in your jurisdiction. If you live in North Carolina, please feel free to call Rice Law, PLLC, we can review the ordinances and rules of your locality in North Carolina and help you determine the viability of urban farming in your locale.
Read Urban Farming: Fresh Eggs Could Result in New Headaches »
September 17, 2013 |
Mark Spencer Williams |
Family Law |
Our team loves animals. In fact, at times we bring them to work with us. We thought we would share some pics of our “extended family”
To see a slide show of all of the pets, follow this link: Pets of Rice Law, PLLC
Read Pets of Rice Law »
July 5, 2013 |
Richard Forrest Kern |
Divorce & Separation, Family Law, Prenuptial, Property Distribution, Separation Agreement, Spousal Support |
There are three basic types of marital contracts in North Carolina – Pre-nuptial agreements, Post-nuptial agreements, and Separation Agreements. Most people know what a Separation Agreement or Pre-nuptial agreement is, which is not to say that there are not misconceptions regarding each, but they each are familiar within the context of popular culture.
Post-nuptial agreements, however, are not as common. In North Carolina for many years, Husbands and wives have been able to contract with each other during the marriage regarding matters that are not inconsistent with public policy. Traditionally, contracts which waived or released a dependant spouse’s right to Alimony were considered against public policy. Hence, post-nuptial agreements were limited in this respect and often considered inferior to separations agreements which could address every issue. For this reason, even when the parties intended to attempt reconciliation, post-nuptials were not seen as a way to address all the couple’s issues.
There has been a recent change to that tradition. Amendments to N.C. Gen. Stat. §§ 52-10; and 50-16.6(b), make it a little easier to settle all issues between a married couple during a brief period of separation – a trial separation in common vernacular. Couples who have separated but intend to work on their marriage and attempt reconciliation can now address all their marital legal issues if they so desire. This can have the effect of calming the emotions between them and create an environment in which the parties can focus on each other and their marriage instead of arguing over contentious issues. Couples still cannot violate public policy but no longer will a waiver, release, or establishment of post separation support, alimony, or spousal support be considered invalid and inconsistent with public policy and reconciliation will no longer destroy a valid waiver, release, or establishment of support in a post-nuptial agreement.
If you and your spouse have decided to separate while still working on your marriage, Rice Law, PLLC, can help you understand, negotiate or draft your post-nuptial agreement to protect your interests. Give us a call.
Read New Law Allows Stronger Waiver of Alimony »
December 19, 2012 |
Mark Spencer Williams |
Child Custody & Visitation, Divorce & Separation, Family Law |
In the wake of the horrible tragedy at Sandy Hook Elementary School in Newton, Connecticut, the National debate has intensified on gun control. As an attorney, we sometimes hear concerns of a parent about the “ex” spouse’s firearms.
If a domestic violence action with merit is filed under North Carolina law, the Court will routinely require the defendant to surrender his or her firearms to the Sheriff and that gun-ban may stay in effect for years (if not for life). In fact, such an order could cause you to lose your job or be discharged from the military.
Even when domestic violence is not an issue, however, the Court can consider firearms as one factor among many in determining which parent should be awarded custody. In a child custody case, everything that has the potential to impact the safety and well-being of a child is fair game. Pediatric groups have recommended that physicians ask parents whether they keep guns at home, and discuss gun safety with those that do in order to prevent shootings involving children. In 2009, according to the CDC, nearly 400 children younger than 15 were killed by firearms.
In a case decided in 2004 by the North Carolina Court of Appeals, the Court considered the fact that the father was a gun collector who had eleven firearms, who kept his firearms with him even when he ran errands with the children and according to the mother, slept with a loaded firearm under his pillow.
As part of the Court’s order, it found that “Father shall not own or possess any firearms until the children are emancipated, or until further order.” Martin v. Martin, 167 N.C. App. 365, 367, 605 S.E.2d 203, 204 (2004).
The Court of Appeals overturned the order because the trial court had not made any findings that the children were endangered by the guns or that their safety was somehow affected by gun ownership. Had the court found that possession of the guns somehow endangered the children, the restriction would have likely been upheld.
While this appears to be the only appellate case directly on point, we deal with this issue at the trial level frequently. In our experience, judges in child custody cases have not negatively affected gun owners who demonstrate to the Court that firearms are used and stored responsibly thereby ensuring that the child is safe and secure.
But since this issue is “fair game” and since there is a real danger to children from firearms that are improperly stored or left loaded within reach, any parent involved in a child custody dispute who also has firearms should strongly consider the following:
- Discuss the issue with your attorney
- Make sure the firearms you own are legal and registered (if required)
- Keep them locked up in a firearm safe so they are not accessible to children
- Take photographs showing safe storage
- Document any formal gun training you have had
- Consider getting Affidavits (and live testimony if need be) of others you have hunted with or been to the gun range with that can attest to your safety habits and responsible gun use.
- Consider storing your guns at work or at a friend’s house
Read Gun Ownership and Child Custody »
December 12, 2012 |
Mark Spencer Williams |
Child Custody & Visitation, Family Law |
We look forward to holidays because it is time we can spend with family. So what happens when that family is being split as a result of divorce? We surveyed the blogs on the subject and suggest the following to help you make it through the holidays this year.
Last year, Katia Hetter, with CNN wrote an article with specific suggestions to survive the holidays for divorced parents. Hetter’s article, Holiday Survival Guide for Divorced Parents, notes that divorced parents face the challenges of negotiating holiday custody schedules, battles over presents, new significant others and simply the pain of being apart.
Bari Weinberger authored, 6 Ways Divorced Parents Can Get More Time With Their Children During the Holidays, in the Huffington Post and her suggestions range from just asking to hosting a sleep over so your ex can ring in the New Year.
And a recent article, Navigating the Holidays After a Recent Divorce, published by the Chicago Tribune offers suggestions for bringing blended families together during the holidays after a recent divorce.
Based upon the experience of our clients, we offer a few tips of our own:
- Focus on the kids
- Set a specific custodial schedule
What tips do you have?
Read Holiday Survival Guide for Divorced Parents »
December 11, 2012 |
Mark Spencer Williams |
Civil Law, Civil Procedure, Divorce & Separation, Ethics |
This phrase is often quoted in a humorous manner to depict the legal profession. It certainly can have different meanings. At worst, it implies that the law is subservient to personal relationships and that a judge will give different decisions based upon who stands before him or her making the same argument. While North Carolina has in fact seen misconduct among the judiciary (see In re: Denise S. Hartsfield as one recent example), the instances of such misconduct are rare.
It is misconduct for an attorney to seek to influence a judge by a means prohibited by law, to communicate ex-parte with a judge (some exceptions apply) or to even imply that they can influence the judge through some personal relationship (See the North Carolina Rules of Professional Conduct). And it is also incumbent upon judges to maintain integrity and independence. In fact that is “rule 1” of the rules for judges (See the NC Code of Judicial Conduct) and judges who become aware of inappropriate conduct of lawyers must initiate disciplinary action against them.
However, I don’t see this phrase in a negative light. In fact, I believe that the judges we appear before remain on the bench because they are committed to helping the citizens who elected them to serve. And I understand it to mean that the “great lawyer” is the one who:
- Knows the Local Rules;
- Knows the Local Customs;
- Uses the Local Forms;
- Knows the Manner in Which the Judge prefers to Hear Evidence;
- Knows the Time limits for various hearings;
- Knows the Judge’s Pet Peeves;
- Knows the Background of the Judge; and
- Knows how the Judge May Likely Rule on an Issue.
An attorney who aspires to know the judge in these ways is better prepared for Court and can better communicate the legal argument because he/she “knows the audience.” In this sense, the phrase is quite appropriate and professional and builds up our profession rather than tearing it down. Therefore, the quote rings true and it is our duty as lawyers — as professionals — to know the judge before whom we practice.
Read “A Good Lawyer Knows the Law but a Great Lawyer Knows the Judge” »
December 10, 2012 |
Mark Spencer Williams |
Alienation of Affection, Family Law |
On 4 December 2012, the North Carolina Court of Appeals affirmed a Mecklenburg Trial Court’s decision to allow a case to proceed by a South Carolina Plaintiff against a South Carolina Defendant for alienation of affection and criminal conversation.
Daniel Monroe Smith filed a Complaint against Jerry Mason Drumm in the Superior Court of Mecklenburg County in October 2010 claiming that Jerry seduced, enticed and alienated the affections of Daniel’s wife, Sandra, from him. Daniel sought monetary damages from Jerry based on allegations of adultery for alienation of affections and criminal conversation. At the time the lawsuit was filed, both Daniel and Jerry lived in South Carolina.
Daniel and his wife Sandra had been together for seventeen years, five as husband and wife. Prior to their marriage, Sandra and Jerry (the Defendant) had been high school sweethearts and had been engaged to be married.
Beginning in March 2009, when Sandra was visiting her mother in a Mecklenburg County Hospital, she allegedly began an affair with Jerry in the State of North Carolina. At that time, Jerry was married and living in Charlotte. In July 2009, Jerry moved to South Carolina.
Jerry filed Motions to Dismiss the lawsuit for various reasons including that he did not believe the North Carolina Courts had jurisdiction over him since he lived in South Carolina and that North Carolina should not be concerned with protecting the marriage of South Carolina’s citizens — a state where these torts have been abolished.
The Court of Appeals ruled that since the affair began in the State of North Carolina and because Jerry lived in the state at the time the affair commenced, the lawsuit against him could proceed. The full decision is available as Smith v. Drumm (COA 12-492).
The decision, while unpublished, is important because many have suggested that the purpose of these torts are to protect the sanctity of marriage for North Carolinians and therefore a case such as this where there are no North Carolinians to protect would allow the Court to clarify the scope of these torts. For now, it appears that N.C. will protect S.C. marriages too.
Read North Carolina Protects South Carolina Marriages Too »
December 9, 2012 |
Mark Spencer Williams |
Family Law, Privacy Rights |
I am increasingly being made aware of the importance of safeguarding bank account information by family and friends who have fallen victim to cybercrime. Experts predict that cybercrime will escalate in 2013 and it is critical that you take steps to protect yourself.
Imagine a hacker getting into your account, remotely erasing the data on your iPhone, iPad, and MacBook, deleting your Google account, then accessing your bank account to transfer your balance to another account and finally activating the camera on your computer to watch as you discover the theft. This is not something from the future, this is possible now and occurs everyday. Hacked personal information including credit card numbers are sold daily on the black market.
One of the main reasons people get hacked is that they use horrible passwords. The New York Times recently published an article entitled How to Devise Passwords That Drive Hackers Away and it provides good tips for locking down your accounts. Clearly, you should employ strong passwords (e.g., 20-30 character passwords with numbers, letters and special characters) and change them frequently for bank accounts, investment accounts, 401(k) accounts, and sites that allow on-line shopping. You should also do this with social media (e.g., Facebook, Linkedin, Twitter etc.).
You should also turn on “two factor authentication” with any site that allows this. Most people only use a password but many sites including Google and Facebook allow two factor authentication which is a security system that requires two credentials to let you into your account. The first is your password and the second is something you have with you such as a cellphone that can generate a unique code. The real advantage of this is if someone hacks your email and goes to your bank account or another site and asks for the password to be reset, they will get the new password but without the code (from your Smartphone), they will not be able to access the account. Yes, it is a pain but it may save your identify and your money.
Another important step to safeguard your data while online is to use an updated operating system and an updated browser (e.g., most recent version of Apple OS or Windows Operating System plus the most recent version of Chrome, Internet Explorer or Firefox). The newest OS and newest versions of browsers include the most recent protections from known threats.
Experts recommend you have two browsers: One for every day surfing on sites that you don’t share important and sensitive information. The other for banking, uploading photos, checking WebMail, stock trades, and online shopping. When you are finished with your transactions, you close it down. This is in part because browsers store information that a hacker can exploit. So if they access your every day browser, your important information is still hidden in the other browser.
Many people are hacked when they supply information in response to a fraudulent email “phishing” scheme. Phishing occurs when you receive an email that appears legitimate but is in fact a fraudulent request for information that will enable a hacker to acquire your password or other private information. See this CBS News Article for tips on protecting yourself from phishing attacks.
And finally, if you have been involved in any type of child custody, child support, alimony or equitable distribution lawsuit in the past five years, go check the Courthouse and have the Clerk get rid of your personal information. We open files at the courthouse frequently to find social security numbers, dates of birth and other very sensitive information right there for the public to see (and steal). See our article “Family Law Clients Should Protect Their Personal Information from Identify Theft” for information on how to do this (including a link to a Form to Request to Redact the Information). If the State commenced a child support action against you, chances are good that your personal information including your social security number, date of birth, monthly income, employer name and address, and your address are plastered all over your file for the public to walk in and take for free.
Read Safeguard Your Life from Cybercrime »
December 7, 2012 |
Mark Spencer Williams |
Child Custody & Visitation, Family Law |
North Carolina has two statutes that allow a grandparent to seek visitation with their grandchild, N.C. Gen. Stat. § 50-13.2(b1)) and N.C. GEN. STAT. § 50-13.5(j). N.C. Gen. Stat. § 50-13.2(b1)) states that “An order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate…” N.C. GEN. STAT. § 50-13.5(j) provides that “In any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to G.S. 50-13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate.”
While no North Carolina court has ever considered the constitutionality of these statutes, they appear to violate both Federal and North Carolina constitutional restrictions and limitations as related to the constitutionally protected rights of parents as enumerated in Troxel v. Granville, 530 U.S. 57, 70, 120 S. Ct. 2054, 2062, 147 L. Ed. 2d 49 (2000); Price v. Howard, 346 N.C. 68, 73, 484 S.E.2d 528, 531 (1997); Petersen v. Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901, 905 (1994) and the line of cases that follow.
Troxel v. Granville is a United States Supreme Court case decided in the year 2000 that originated from the State of Washington. It involved the mother, Tommie Granville, and father, Brax Troxel, of two daughters, Isabelle and Natalie, and Brad’s parents. After Brad committed suicide in 1993, Tommie refused to allow Brad’s parents to visit with their grandchildren and the grandparents brought a lawsuit for grandparent visitation. The United States Supreme Court ultimately decided that Washington States’ grandparent visitation statute was unconstitutional because it violated the mother’s constitutional due process right to make decisions regarding the care, custody and control of her daughters. In essence, parents who are fit and proper parents have a constitutional right to determine with whom their children may associate and that includes grandparents.
Due Process Requires a Clear & Convincing Evidentiary Standard to Deprive a Fit Parent of Their Right to Determine With Whom Their Child May Associate
Troxel held that a Court must give “special weight” to a fit parent’s decisions restricting or denying grandparent’s visitation with their child. Troxel, 530 U.S. at 70 (2000). Troxel cited Santosky in its reasoning but failed to provide the standard of review for grandparent visitation cases. In fact, Justice Thomas criticized the failure to articulate the proper standard and suggested that strict scrutiny would be required. Troxel, 530 U.S. at 80 (2000). The United States Supreme Court has found that the due process requirements of the Constitution requires that the “clear and convincing evidence” standard be utilized before terminating a parent’s rights. Santosky v. Kramer, 455 U.S. 745, 769 (1982). Since North Carolina grandparent visitation statutes seek to abrogate the parent’s constitutional rights to determine with whom their child(ren) may associate, “clear and convincing” evidence should be required. However, the statute fails to require the higher burden of proof.
In a normal child custody case, “greater weight” or “preponderance of the evidence” is the evidentiary standard that is used. Clear and convincing proof is a higher standard of evidence that means that the evidence presented by a party during a trial must be highly and substantially more probable to be true than not and the trier of fact must be fully convinced of its factuality.
A number of states have found that due process requires the higher evidentiary standard of clear and convincing evidence to support an award of grandparent visitation. Solangel Maldonado, When Father (or Mother) Doesn’t Know Best: Quasi-Parents and Parental Deference After Troxel v. Granville, 88 Iowa L. Rev. 865, 885 (2003); In re Adoption of C.A., 137 P.3d 318, 327 (Colo. 2006); Sheppard v. McCraney, 730 S.E.2d 721, 722 (Ga. Ct. App. 2012); Hamit v. Hamit, 271 Neb. 659, 675, 715 N.W.2d 512, 526 (2006).
The North Carolina grandparent visitation statutes, and North Carolina case law related to those statutes, do not appear to set an evidentiary standard with respect to grandparent visitation and it does not appear that our appellate courts have addressed what evidentiary standard is required to award grandparents visitation. The mere omission of this standard should allow an appellate court to find the statute unconstitutional.
North Carolina’s Statute is Facially Unconstitutional As It Requires No “Special Weight” Be Given to a Fit Parent’s Wishes
The United States Supreme Court found that “if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.” Troxel v. Granville, 530 U.S. at 70 (2000) (Emphasis added).
Grandparent visitation decisions increasingly reflect a recognition that visitation should not be awarded over the objection of a fit parent. Joan Catherine Bohl, Grandparent Visitation Law Grows Up: The Trend Toward Awarding Visitation Only When the Child Would Otherwise Suffer Harm, 48 Drake L. Rev. 279, 280 (2000).
“The majority of courts have held that, under Troxel, courts must apply a presumption that the parent’s decision to deny or curtail visitation is in the child’s best interest.” Maldonado, Supra, at 883.
Arkansas, Colorado, Illinois, Indiana, Maryland, Montanna, New Mexico, South Dakota, and Tennesee have established the presumption that a fit parent’s decision in denying or limiting grandparent visitation is in the best interest of the minor child. ARK. CODE ANN. § 9-13-103 (2012); In re Guardianship of A.L.C., 902 N.E.2d 343, 356 (Ind. Ct. App. 2009); In re Adoption of C.A., 137 P.3d 318, 327 (Colo. 2006); In re Pfalzgraf, 378 Ill. App. 3d 1107, 1110, 882 N.E.2d 719, 721 (2008); Barrett v. Ayres, 186 Md. App. 1, 17, 972 A.2d 905, 914 (2009); Polasek v. Omura, 332 Mont. 157, 136 P.3d 519, 521–22 (2006); Deem v. Lobato, 2004-NMCA-102, 136 N.M. 266, 271, 96 P.3d 1186, 1191; Beach v. Coisman, 2012 S.D. 31, 814 N.W.2d 135, 138; Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993). Other states at least require the court to give special weight to the opinion of a fit parent regarding grandparent visitation. In re McClean, 4 A.3d 423, 430 (Del. Fam. Ct. 2010).
While North Carolina applies the parental preference presumption in custody decisions regarding a fit parent over a third party, North Carolina does not have such a requirement as to grandparent visitation. Brewer v. Brewer, 139 N.C. App. 222, 229-231, 533 S.E.2d 541, 547-548 (2000); Cf. McIntyre v. McIntyre, 341 N.C. 629, 634, 461 S.E.2d 745, 749 (1995) (holding that “custody” and “visitation” are not synonymous as to grandparents in North Carolina). Instead, North Carolina uses the intact family and on-going custody dispute rule with respect to grandparent visitation. See, e.g., Eakett, 157 N.C. at 551-553, 579 S.E.2d at 489 (2003). However, this standard gives no special weight or credence to a fit parent’s preferences regarding grandparent visitation in contradiction to Troxel. Id.
The practical effect of not providing special weight to a fit parent’s preferences regarding grandparent visitation is that the fit parent’s constitutional rights are eroded through no fault of his or her own or that a simple custody action between two fit parents can give rise to a loss of both parent’s right to determine with whom their children associate.
As such, N.C. GEN. STAT. §§ 50-13.2(b1) and 50-13.5(j), both of which are devoid of any instruction from the Legislature to consider a fit parent’s preference regarding their child visiting a grandparent is facially unconstitutional.
Grandparents Should Be Required to Prove Some Harm to the Minor Child to Invade the Fit Parent’s Constitutionally Protected Status
Some have argued that the only compelling justification to intrude upon a parent’s Fourteenth Amendment constitutional rights arises only when children would otherwise be exposed to a threat of serious harm. Bohl, Supra, at 284. Several states have adopted this approach. Florida, Georgia, New Jersey, Oklahoma, and Texas require that the grandparent prove some harm to the child if visitation is not granted before the privacy right of the parent to raise a child without government intrusion. Forbes v. Chapin, 917 So. 2d 948 (Fla. Dist. Ct. App. 4th Dist. 2005); New Jersey Div. of Youth & Family Services v. P.W.R., 205 N.J. 17, 39, 11 A.3d 844, 857 (2011); In re Herbst, 1998 OK 100, 971 P.2d 395, 399 (1998); Sheppard v. McCraney, 730 S.E.2d 721, 722 (Ga. Ct. App. 2012); Tex. Fam. Code Ann. § 153.432 (2011).
When a grandparent visitation statute fails to require there be proven harm to the minor child justifying visitation during the fit-parent’s custodial time, or fails to at least consider the wishes of a fit parent as against a grandparent, then it should be deemed to fail constitutional muster and invasion of the fit parent’s constitutionally protected status should be prevented.
At this point, North Carolina’s appellate courts have not addressed the constitutionality of these statutes. While methinks them unconstitutional, the opinion of the author is merely that and our court’s will continue to operate under the statute until these statutes are challenged at the appellate level.
NOTE: Consult a licensed attorney in your jurisdiction for legal advice concerning this topic. This article is the opinion of the author and does not constitute legal advice. Since no North Carolina appellate court has decided this issue, the constitutionality of the statutes in question are unknown. This article makes a clear distinction between North Carolina’s statutes which allow grandparents to seek child custody (which the author believes are constitutional) and those which allow grandparents to seek visitation (which the author believes are not constitutional as written). These statutes could be easily “corrected” even if unconstitutional by requiring the trial court to make findings under clear, cogent and convincing evidence and by considering and giving “special weight” to the wishes of a fit and proper parent before granting visitation.
Read Methinks North Carolina’s Grandparent Visitation Statute is Unconstitutional »