Legal Elite 2017 – Top NC Lawyers

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Since 2002, Business North Carolina magazine has honored Tar Heel lawyers by publishing Business North Carolina’s Legal Elite, a listing of the state’s top lawyers in business-related categories. Winners are chosen not by BNC editors, but by the state’s lawyers. Business North Carolina’s Legal Elite has become the model for other awards and lists, but it remains unique as the only award that gives every active lawyer in the state the opportunity to participate. Business North Carolina’s Legal Elite includes the top lawyers chosen using this statewide ballot.

Each year, BNC sends ballot notices to every member of the N.C. State Bar living in North Carolina — asking each a simple question: Of the Tar Heel lawyers whose work you have observed firsthand, whom would you rate among the current best in these categories? Voters are not allowed to vote for themselves. They may select members of their firms only if they pick out-of-firm lawyers in the same categories, with the latter votes weighted more heavily.

Visit this link to see the list for 2017: Business North Carolina‘s Legal Elite 2017.

Adoption in North Carolina

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In North Carolina, adoptions are governed by Statute. The Clerk of Superior Court handles these cases.

Any adult may adopt another person in theory, except that spouses cannot adopt each other. Any person may be adopted, including adults. The person adopted does not have to be a citizen of the United States, but if not, there can be hurdles with the federal immigration authorities. These hurdles are outside the scope of this article. The person adopted can even be an adult.

If the person adopted is not an adult, there are three types of placements with prospective parents. First, an “adoption agency” as defined by Statute may place a child for adoption. Second, a Guardian (other than a parent) appointed by law may place a child for adoption. Last, a parent having legal and physical custody, or both parents may place a child for adoption.  Agencies may place children for adoption only with prospective parents who have been pre-approved pursuant to the Statutes. Guardians and parents who place children for adoption personally select prospective adoptive parents in what is known as a “direct placement.”

The person(s) seeking to adopt must file a Petition for Adoption with the Clerk of Superior Court. Except in step-parent adoptions, a prospective parent’s spouse must join in the Petition. Notice must be given to the child in certain circumstances, the agency placing the child for adoption, the Guardian (if any), any parent whose parental rights have not been terminated and who has not given proper consent, and anyone with legal or physical custody or visitation rights with the minor child.

The Clerk must then request that a report be completed by a Statutorily authorized agency to evaluate the prospective adoptive parent, if this has not already been performed. By law, these reports may only be completed by county social services departments or licensed adoption agencies.

Unless both parents consent, parental rights of the birth parents have to be terminated before a child can be adopted. In adult adoptions, consent of the biological parents/termination of parental rights are not necessary.

In step-parent adoptions, the agency assessment can often be dispensed with and typically biological grand-parent visitation rights are not affected.

Upon a successful adoption, a new birth certificate is issued for the adopted person, showing the adopting parents’ names as parents.

Surrogacy raises considerable issues under North Carolina law. These issues are quite complex and are outside the scope of this article.

Lee Allen, III, a NC State Bar Board of Legal Specialization certified Specialist in Family Law and a NCDRC Certified Family Financial Mediator, is Of Counsel to the law firm of Colombo, Kitchin, Dunn, Ball & Porter, PLLC, where he provides advice and assistance to clients throughout eastern North Carolina.

A Primer on Child Custody

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For help with family law questions or custody issues, call Lee Allen, Attorney and Certified Family Financial Mediator with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

In today’s world, many fathers live apart from their children.  When the time for separation comes, and sometimes for years after it occurs, many fathers find themselves asking, “When can I see my child?”

The answer depends, in part, on what you and your child’s mother can agree upon.  An agreement allows the parents to be creative, flexible, and to have control in deciding the particulars of each parent’s time with the child.  Once an agreement has been reached, North Carolina law requires it to be in writing and also requires certain formalities to be met.

If the parents cannot agree, one or the other will likely initiate a lawsuit, asking the Judge to decide on the issue of custody, including setting a schedule for each parent to enjoy time with the child.  The result will be comprehensive and will deal with all aspects of the child’s life, including decision-making, access to information, where the child resides, a schedule setting forth times the child sees each parent, how the child spends his or her summers, and how the child spends holiday time.

The Judge will base his or her decision regarding the issue of child custody by determining what is in the child’s best interest.  Therefore, a Judge has a great deal of discretion in reaching a decision.  Typically, the history of parental involvement plays a great role in determining the custodial arrangement.  In addition, judgment, maturity, and the ability and willingness to set aside differences with the other parent in order to do what is right and best for the child will also be factors considered by the Judge.

The term legal custody generally refers to the authority and responsibility to make major, important decisions for the child, such as medical/dental care and education.  It is not unusual for both parents to be awarded joint legal custody, with one parent having primary physical custody of the child.

Primary physical custody refers to the rights and responsibilities of the parent with whom the child primarily resides.  This obviously includes a good deal of decision-making with regard to the more mundane, everyday decisions.

Visitation refers to the right of a parent to spend time with the child.  This is sometimes referred to as secondary physical custody.

In making a custody determination, the Judge will generally provide for each parent to have certain times with the child during summer vacation.  This is to allow each parent the opportunity for vacations, time with grandparents, etc.  This can be done by allowing each parent uninterrupted blocks of time.  The Judge will also provide for a holiday schedule, typically focusing on Thanksgiving, Christmas, and Easter/Spring Break.  From time to time, a Judge may include other holidays such as Labor Day, Martin Luther King Day, Memorial Day, and Fourth of July.  Generally speaking, parents share holiday time equally.  This can involve splitting up particular holidays from year to year, or as is most often the case, a mix of the two.  Generally, Christmas is divided in half and the parties will alternate those halves from year to year.  In other words, the parent having the first half of the Christmas holiday in 2016 would have the second half of the holiday in 2017.  Sometimes Judges will split the other holidays, and sometimes they will just flip flop who enjoys time at those particular holidays from year to year.  For instance, sometimes Easter/Spring Break is divided in half not unlike Christmas, and sometimes one parent will have the whole holiday in even years and the other parent will have the whole holiday in odd years.

Ultimately, the Judge will determine a schedule for each parent’s custodial time, provide for summers and holidays, and this schedule is enforceable through the court’s contempt powers.  In other words, a parent willfully violating a custody order could be jailed for contempt of court.

 

Uniformed Services Former Spouses Protection Act (USFSPA)

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Uniformed Services Former Spouses Protection Act (USFSPA)

In 1982, Congress passed, and President Ronald Reagan signed into law, the Uniformed Services Former Spouses Protection Act (USFSPA), the major Federal law allowing and regulating the division of future military retirement benefits.  This law was passed to overturn a 1981 U.S. Supreme Court decision providing that future military retirement benefits were not subject to division by State courts upon divorce.

The effect of the USFSPA is straightforward and simple.  With certain exceptions, which are beyond the scope of this article, a service member’s disposable retired pay is subject to State property division schemes by State judges upon divorce or separation.  Generally speaking, disposable retired pay means the net retired pay a service member receives or will receive.  There are limitations and exceptions to this as well.

The USFSPA dealt only with military retirement benefits and did not deal with veteran or military disability pay.  Disability pay received because of military service is not subject to division by State Courts upon divorce or separation.  This was particularly problematic until some recent post-9/11 changes to Federal law that now allow service members to receive both retirement pay and disability pay under certain circumstances.  Previously, a service member had to choose retirement pay or disability pay, but the service member could make the choice at his or her option.

If you would like more information about your rights as a military spouse or for specific questions, please consult with an attorney who has experience with military retirement and related issues.

College Tuition in NC Child Support Cases

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Under North Carolina law, college tuition and expenses are not something that a
Court can make a parent pay on behalf of the child. They simply are not available
in a child support case. However, where the parents agree to pay college tuition
and expenses in a proper written document, then that agreement is enforceable as a
contract, or, if incorporated into a Divorce Judgment, then it is enforceable as an
Order of the Court via the Court’s contempt power.

You should talk with an experienced family law practitioner about any issues
related to college expenses before you sign or agree to anything. Contact Lee Allen
at 252-321-2020 to discuss your child support questions.

 

Child Custody Q&A

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A Primer on Child Custody

My spouse and I have separated. When can I see my child?

If you and the other parent can agree, then you can be as creative and flexible as you like. In addition, an agreement gives both parents some input into a custodial schedule.

What happens if we cannot agree?

If the parents cannot agree, litigation becomes necessary. Ultimately, a Judge will decide on the issue of custody (assuming the parents remain unable to reach an agreement) and the parents will have much more limited input into what the custodial schedule looks like.

How do Judges decide the issue of child custody?

 Under North Carolina law, a Judge will base his or her decision about child custody on what the Judge believes is in the child’s best interest. Therefore, the Judge has a great deal of discretion. Typically, the history of parental involvement plays a great role in determining the custodial arrangement. In addition, judgment, maturity, and the ability and willingness of one parent to set aside differences with the other parent in order to do what is right and best for the child.

What is “joint custody?”

 When both parents have authority and responsibility to make major, important decisions for the child, such as medical/dental care and education, they are said to have “joint legal custody.” It is not unusual for both parents to be awarded joint legal custody, with one parent having primary physical custody of the child. ”Primary physical custody” refers to the rights and responsibilities of the parent with whom the child primarily resides. This would include a good deal of decision-making with regard to the more mundane, every day decisions. “Visitation” refers to the right of a parent to spend time with a child. This is sometimes referred to as “secondary physical custody.”

How are holidays dealt with after parents separate?

Holidays are most often shared in some fashion. Holidays can be divided equally, or they can be rotated from year to year. That is, one parent might have, for example, Thanksgiving in odd-numbered years, and the other parent would enjoy time with the child at Thanksgiving in even-numbered years; while the parent having the first part of the Christmas holiday one year would have the second part of Christmas the following year. Creativity and flexibility are especially important when dealing with holiday time.

 

Electronically Stored Information and Litigation

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Electronically Stored Information (“ESI”) is prevalent in today’s world. We encounter it constantly with the increased use of e-mail, text messaging, social media, blogs, etc. We use it both at home and work. It is everywhere in our personal lives, our professional lives, and on our computers, smart phones, and tablets.

In a litigation context, ESI can be particularly troubling. It can be changed, modified, or deleted more easily than traditional physical documents. It can also be accessed and copied at any time by multiple people – often without the necessity of reporting it to anyone. Such acts can expose litigants to the possibility of sanctions ranging from admonishment or reprimand to dismissal of claims or default judgment.

This is particularly frightening for employers. Therefore, it is critical for employers to be mindful of this potential minefield and implement a Records Management Policy and Retention Schedule. Adhering to these may provide a safe harbor from sanctions related to loss or destruction of ESI that may be needed during litigation.

A proper ESI policy will establish procedures to preserve, catalog, find, and produce ESI that may be relevant to a dispute. In addition, the proper system will allow for a more efficient and less expensive search for ESI.

If an employer outsources any functions, such as accounting, payroll, web hosting, etc., this will have to be considered when developing ESI policies. In addition, any other entity (customers, suppliers, etc.) with which ESI is shared must also be included in the ESI management policies.

When litigation is anticipated or commenced, a party must take reasonable steps to preserve relevant ESI. An investigation is such an event. During this time, the ESI management policy and deletion schedule must be suspended and all relevant or potentially relevant ESI must be preserved.

As soon as a party becomes aware of an investigation, claim, lawsuit, or incident that could lead to such, it should also put in place a “litigation hold.” A litigation hold is a communication to all appropriate and entitled persons to preserve relevant ESI. This communication should be in writing.

An ounce of prevention being worth much more than a pound of cure, consult with a litigation attorney to implement an ESI management policy and to implement or respond to a litigation hold.

For help with family law questions or other civil litigation issues, call Lee Allen, Attorney and Certified Family Financial Mediator, at 252-321-2020.