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Holiday Visitation

Are you concerned about seeing your children over the holidays?  Disputes over holiday child custody visitation are not uncommon, but can be quite unpleasant. The holidays can be stressful enough, without having to worry about seeing your children.  Here is some information to help you get through the season.  As always, feel free to contact Mahlum Law Office with your custody or visitation questions.

1.  Do I have grounds for an emergency custody order?

In North Carolina, there are typically only two scenarios under which a parent may have grounds for an emergency custody order:  1) if a child is in serious danger of bodily harm, or 2) a parent is trying to flee the state with the child for the purpose of evading the jurisdiction.  If an agreement for holiday visitation is not being followed, as frustrating as it is, this situation will still not constitute grounds for an emergency custody order.

2.  What if I am entitled to a specific holiday, but it is not my weekend?

Often times, parents have questions regarding the logistics of holiday visitation orders.  For example, it may be one parent’s regularly scheduled weekends, but that weekend may also be a holiday.  Typically, specific holiday provisions in custodial agreements override general visitation provisions.  So even if it is your weekend, you may not be entitled to your regular visitation if the agreement provides that the other parent is entitled to the holiday in question.

3.  We don’t have a court order.  Can I see my kids?

If there is no written agreement as to which parent is entitled to holiday visitation with the children, things can get very contentious.  Unfortunately, absent a written agreement or court order to the contrary, each parent has just as much right to visitation as the other.  This is why it is very important to iron out these possible conflicts well in advance of any holiday.

4. How will the courts divide holiday visitation?

There are many different ways of ensuring that both parents get meaningful time with the children over the holidays.  Parents may agree to rotate holidays each year.  For example, one parent will be entitled to the holiday in odd years, while the other parent will be entitled to visitation on the same holiday in even years.  Or, parents may decide to equally divide the holiday, taking into account the length of the holiday and school schedules.  This method is popular, as both parents are allowed to see the children during the same holiday.  There is no black and white formula for dividing holiday visitation, and schedules are best determined on a case by case basis, to ensure that each family’s individual needs are met.

Parental Kidnapping

The recent news story involving Joshua and Sharyn Hakken, a Florida couple accused of kidnapping their children and fleeing to Cuba, highlights the issue of parental kidnapping in the United States.  As divorce rates soar, and contentious child custody battles seem to be all around us, there are more and more instances where one parent flees with the children.  But what happens when the children are removed from North Carolina?  Or even the United States?  What protections are in place?

One safeguard in the United States is the Full Faith and Credit clause of the United States Code.  This provision states that every state will recognize and enforce a custody order from another state.  Practically speaking, this means that if a parent has been given custody by one state, the other parent cannot remove the child from that state, in the hopes of escaping the current custody order.  This provision applies not only in the fifty states, but also in the District of Columbia, Puerto Rico, and the United States Territories.

To address growing issues with international kidnapping, the U.S. Department of State enacted the Children’s Passport Issuance Alert Program.  Under this program, parents can register their children, and will be contacted by the State Department if another parent or guardian applies for a passport for the child.  This is particularly useful in custody disputes where international travel is a concern.  If a parent objects to the issuance of the passport after being notified by the authorities, the U.S. Passport Agencies, embassies, and consulates abroad will be alerted.

Another safeguard put in place to combat parental kidnapping was the creation of The Hague Convention.  The Hague Convention is an international treaty that was enacted in 1988 to specifically address international kidnapping.  Today, the Hague treaty is in place between the United States and 48 other countries.  Under the Hague Convention, any child that is wrongfully removed from the United States (or another participating country of residence) must be returned to that country.  Each participating country has established authorities to process the inquiries and returns.  While this law prevents a kidnapper from hiding under the safeguards of another country’s laws, the Hague Convention may be of little help when the location of the child is not known and the kidnapper is truly “on the run.”

If you are concerned about your child being removed from your state of residence, or feel that someone you know may try to circumvent the courts to prevent you from seeing your child, it is important that you consult with an experienced family law attorney.  In addition to the resources listed above, there are other steps, both in and out of court, which can be taken to minimize the risk to your child and help give you peace of mind.  Contact Mahlum Law Office to learn about all of your options, we can help.

Child Custody: How Does It Work?

Child custody disputes can be one of the most stressful issues surrounding a legal separation or divorce.  What do you need to know?  Where do you start?  A good first step is always to contact an experienced attorney to help you, but it’s also important to know about the process.

Once a custody case has been filed in court, the Judge will consider the evidence presented in court to decide what type of visitation schedule is in the child’s best interest.  All custody cases are heard in the District Courts of the State, before a Judge, not a jury.

There are two main types of child custody – “legal custody” and “physical custody.”  Legal custody refers to who will make major decisions for the child, such as healthcare and education.  Legal custody may be awarded to both parents jointly (“joint legal custody”), or may be awarded only to one parent (“sole legal custody”).  It is not required that a child live with the parent in order for that parent to have legal custody.

Physical custody refers to where the child actually lives.  The Judge may award one parent “sole physical custody” of the child.  More commonly, physical custody is awarded to both parents, so that both parents are said to share “joint physical custody.”  This does not necessarily mean that the child spends equal time with each parent.  The judge will consider all of the circumstances of the case to determine the actual visitation schedule.

In North Carolina, it is required that all parties involved in child custody cases attend a mediation session prior to a permanent custody trial.  At the mediation session, a neutral third-party mediator will meet with both parents in the hopes of creating a visitation schedule that everyone agrees on.  The mediator will not take sides, cannot give legal advice to either party, and cannot force anyone to enter into an Agreement.  If the parties are able to agree on a visitation schedule, the agreement will be put into writing as a “Parenting Agreement.”  This agreement will then be submitted to the Judge for approval, and will become an order of the Court.

If your case does not resolve itself in a settlement agreement, the next step is the custody trial.  At the trial, you must present evidence that supports your side of the case, and you must follow the local rules of court, the rules of evidence, and the rules of civil procedure.  Custody cases can be complicated by issues like domestic violence, allegations of child abuse, non-traditional work schedules, out of state residence, and military deployment.

It is important that you are prepared and organized as you present your case in court.  If you do not have a lawyer, you will still be required to comply with all court rules.  The Judge is not allowed to help you present your case.  After hearing all the evidence, the Judge will issue a custody ruling, which will address issues such as the regular visitation schedule, holiday schedules, and who will have the right to make decisions concerning the child.  Regardless of whether your case settles outside of court or goes to trial, stay focused on your goals and do not be afraid to seek advice.  Contact Mahlum Law Office today if you have any questions or concerns about your child custody case.  We can help.

“You have the right to remain silent…”

Everyone has heard Miranda before on TV or in a movie, if not in person.  Some of you can probably recite the rights.  But when do the police need to read Miranda Rights to someone?

There has been quite a bit of news recently about whether to advise Boston Bombing suspect Dzhokhar Tsarnaev of his rights, and it is a great opportunity to discuss the implications of Miranda Rights.  There are many public policy decisions and issues for Dzhokhar that don’t pertain to the average defendant, but it is a good example.  So, what happens if the police do not advise you of your rights?

Miranda rights are required before any custodial interrogation.  What is a custodial interrogation?  First, it is one where the defendant is in custody.  Many days can be spent in law school debating what “in custody” means, but as a general rule, if you are in handcuffs or in the back of a squad car, you are in custody.  What constitutes an interrogation?  If the officer asks you any questions, it is considered an interrogation (though there are exceptions for basic questions like “what is your name”).

So what happens if you are questioned after you are arrested, but no one reads you your rights? Your case does not automatically get dismissed.  The FBI and Federal Prosecutors would not have asked Dzhokhar questions without reading him his rights if it meant the criminal case would get thrown out.  Prosecutors likely think they have enough evidence to convict him, even if they can’t use what he says during the interrogation.

If you are questioned without being read your rights, your responses to those questions probably can’t be used at trial.  At Mahlum Law Office, we would file a Motion to Suppress and argue to the judge that your rights were violated, and that anything you said during that interrogation shouldn’t be used against you.  If the Judge ruled in our favor, the DA couldn’t use any of the suppressed statements against you.  At that point, whether the DA chose to proceed or dismiss the case would depend on the strength of the other evidence.  If the police witnessed the crime, odds are the DA will still prosecute the charges.  However, if you confessed during a custodial interrogation, and there isn’t any other evidence, it might just be your lucky day.

What NOT to Do During a Divorce

Going through a divorce is never easy.  Divorcing couples often face difficult emotional, financial, and legal issues that can leave them feeling overwhelmed and confused.  We’ve compiled a list of common mistakes made during divorce, to help you navigate your way through a divorce and avoid making costly mistakes that can negatively impact you down the road.

  1. Ignoring tax consequences of divorce:  When going through a divorce, many couples overlook the tax consequences related to spousal support, child support, and property transfers.  For example, alimony received is normally taxable as ordinary income.  Also, if your divorce settlement deals with retirement assets, you need to be aware of the potential penalties and early distribution fees.
  2. Not telling your attorney the “whole” truth:  People withhold information from their attorneys for a number of reasons.  Sometimes they are embarrassed about certain facts or situations.  Other times, people facing a divorce feel that going into too much detail with their attorney will slow the process down, and ultimately cost more money.  It is absolutely necessary to be truthful and forthcoming with your attorney, so that he or she can effectively deal with potentially harmful aspects of your case.
  3. Involving your children in the divorce process:  It is very important to make sure that you don’t discuss your divorce with your children, or allow them to overhear your conversations about the divorce.  It doesn’t matter how old your children are or how unfair your ex is being – don’t make the mistake of involving your children.
  4. Rushing into a settlement:  In an effort to end the divorce process as quickly as possible, it can be tempting to accept the first settlement proposal that you are presented with, or sign settlement documents without taking the time to understand the legal ramifications.  You must resist the urge to “just get it over with.”  You should never sign anything without consulting with an attorney.
  5. Dating too soon:  You may be thinking that since you and your spouse are separated, you are free to date, right?  After all, it wasn’t your idea to get a divorce.  Wrong!  Many people going through a divorce make the mistake of jumping into a new relationship too soon after a separation.  This will likely make your ex much harder to negotiate with, and could cause more stress for your children.

Aiding and Abetting Driving While Impaired

How your “Designated Driver” can cost you your license.

An individual can be charged with Aiding and Abetting a DWI when they allow another person to drive their car while that person is under the influence of alcohol.  If the driver is stopped and charged with a DWI while the owner of the vehicle is in the car, then the owner will probably be charged with Aiding and Abetting Driving While Impaired.  We see this happen sometimes where a friend is “better off to drive” and takes his friends keys.  If the driver is stopped and charged with DWI, the passenger/car owner may find themselves in handcuffs as well.

When charged with Aiding and Abetting a DWI it is extremely important to retain an experienced criminal defense attorney.  A conviction for Aiding and Abetting a DWI carries the same punishment as a Level 5 Driving While Impaired conviction and may result in loss of driving privileges.  A level 5 punishment may consist of  minimum imprisonment of 24 hours, maximum imprisonment of 60 days, and a maximum fine of $200.  The jail sentence can be suspended if the defendant does at least 24 hours of community service or 24 hours in jail.  The defendant convicted of Aiding and Abetting must also obtain a substance abuse assessment and complete any recommendations from that assessment, just as if they were convicted of Driving While Impaired.

If you or someone you care about is facing a Aiding and Abetting DWI charge, contact us today, we can help!

How To Handle Parental Alienation

One of the most common issues that parents face is dealing with the other parent after a separation or divorce. Divorce can cause a variety of crippling emotions, and it becomes even more complicated when children are involved. Raising a child requires collaboration between parents, even if that person is last person in the world that you want to communicate with. This situation can manifest itself in many different ways, including one parent’s manipulation of the children against the other parent. Commonly referred to as “Parental Alienation,” this behavior is felt in varying degrees. It may be as mild as one parent’s irritating comment about the other parent made within earshot of the child; or, as severe as one parent deliberately disparaging the other parent to the degree that the child no longer wants to visit the targeted parent.

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Kim Kardashian and Kris Humphries: Till Divorce Do Us Part

After being married for only 72 days, it appears that the Kim Kardashian and Kris Humphries saga is here to stay…for a while at least.  The high-profile couple married on August 20, 2011 in a widely-publicized television wedding, and Kardashian filed for divorce on October 31, 2011, citing irreconcilable differences.  Legal teams for Kardashian and Humphries have been battling ever since, with hearings in the Los Angeles Superior Court scheduled well into 2013.  Both sides are pointing fingers at the other for the protracted divorce proceedings.

While Kardashian is asking the court for a legal divorce, Humphries is requesting an annulment of the marriage.  Legally speaking, an annulment means the marriage is declared null and void.  The basketball star’s basis for the annulment claim is fraud, arguing that Kardashian entered into the marriage solely to promote her various television shows and make money.   According to The New York Post, revenue from the wedding, combined with sponsorships and gifts totaled nearly $17.9 million dollars for Kardashian.

Initial reports from a lawyer for Humphries indicate that a trial on the issue of annulment could last as long as two weeks in court, with potential deposition lists featuring names like Kanye West and Kris Jenner.  You may be wondering why a marriage that lasted only 72 days is taking much longer to settle.  The dispute over whether the marriage should be annulled or ended by divorce, and thus whether the couple’s prenuptial agreement should be honored, is largely to blame for the delay.  If the court rules that the marriage is not fraudulent, and an annulment cannot be granted, then the couple’s prenuptial agreement will likely determine the settlement terms.

Kardashian’s lawyer, Laura Wasser, has been very vocal about her frustrations with the delay, arguing that a settlement should not be difficult given the length of marriage and the existence of a prenuptial agreement to govern the division of any marital assets.  However, it is not uncommon for high-asset divorce cases, like this one, to be contentious.  Often times, neither party is willing to concede their position and forego valuable property and monetary rights, forcing many couples to settle their issues in court.  Given the circumstances and publicity surrounding the breakdown of the marriage between Kim Kardashian and Kris Humphries, their divorce will undoubtedly be no less dramatic.  And who knows, we might just get to watch the proceedings live!

Custody Relocation

When it comes to child custody, the subject of relocation can be a very difficult, emotional topic.  There may be various reasons why you are considering a move, including potential job opportunities, closer proximity to family and friends, or simply the need for a change in environment following a divorce.  Regardless of your motivation for wanting to relocate, there are a variety of factors that you need to consider before determining if a move is right for you and your family.

If you currently have an agreement or custody order in place that sets the custody visitation schedule, you will want to carefully read over this agreement to make sure there is no provision addressing relocation.  Often times, custody agreements make reference to future moves by placing restrictions on parents as to how far they may move from their current location, or how much notice they are required to give the other parent before the move occurs.  Even if you are certain that the move is the best thing for you and your children, it is important to comply with any agreements that are currently in place, in order to avoid disputes down the road.  This may mean that you need to petition the court for a modification of the current custody schedule prior to moving.

Whether a relocation will be allowed varies from state to state, depending on current law.  In North Carolina, when considering a relocation case, the family law courts are required to consider the following factors:

  • The impact of the move on the child
  • Whether the relocation will improve the child’s life
  • Whether the advantages of the move outweigh the disadvantages if relocation is allowed
  • Whether the parent requesting the relocation has reasonable motives
  • The integrity of the noncustodial parent in resisting the relocation
  • Whether the court can create a reasonable, realistic visitation schedule should relocation be allowed
  • The likelihood that the party requesting relocation will follow the court’s order

If the parent not seeking to relocate consents to your move, then the issue can be easily handled through an agreement outside of court.  However, if the other parent objects to your move, you need to be prepared to present evidence in court to address all of the above factors.  Unilaterally deciding to relocate your family could potentially harm your case, and you could be ordered to return the child to the other parent.  At the hearing, the Judge will want to hear evidence regarding topics such as the child’s significant relationships and extracurricular activities in the area, the possibility of greater employment stability in the new location, and the current visitation schedule compared with possible new visitation schedules, should the relocation be allowed.

Each situation presents unique facts that may influence a court’s decision regarding whether to allow a move.  Important facts such as the age of the child, role of the non-custodial parent in the child’s life, and the distance of the child’s current home from the location that you are hoping to move to all play an important role in the decision.  Whether you are hoping to relocate with your children, or are being confronted with an unwanted, potential relocation of your child, it is very important that you seek legal advice to determine the best plan of action, and to determine what your rights are.

Same-Sex Divorce

Same-sex marriage is currently recognized in six U.S. states, and the District of Columbia.  Also, there is no minimum residency requirement in these states for same-sex couples who want to marry.  The practical effect of this situation is that many couples can simply travel to these states to get married, and then return home.  However, the situation gets a little more confusing when those same couples decide to part ways down the road.  If a same-sex couple’s relationship falls apart in a state that does not recognize same-sex marriage, the question becomes, will that state allow the couple to obtain a legal divorce?

Regardless of what state these couples reside in, they may be encountering the same difficult issues as heterosexual couples when a relationship ends.  They will have questions about how to divide their property, how to support each other, and how to deal with child custody issues.  Often in same-sex relationships, a child may be biologically related to only one parent, though both parties have jointly raised the child since its birth.  This makes matters very complicated when same-sex couples separate, and may leave the non-related parent in limbo regarding his or her rights to visit with the child.

North Carolina voters recently passed a constitutional amendment that defines marriage as solely between a man and a woman, making it the 30th state to pass such a constitutional amendment banning gay marriage.  As same-sex marriage was already illegal in North Carolina, the effect of this constitutional amendment is still unclear.  What remains even more unclear is the remedies available to same-sex couples that were married in a state that recognizes gay marriage, and now hope to legally divorce.

In a recent case, a same-sex couple residing in Maryland, who were married in California, sought to obtain a legal divorce.  While a county court initially denied the couple a divorce as violating public policy, the Maryland Court of Appeals overturned the decision and ruled that same-sex couples who were validly married in a state that recognized such marriages could obtain a divorce in Maryland.

Another option for same-sex couples who seek to legally divorce, may be to petition for a divorce in the same state in which they were married.  In January of 2012, a California court ruled that same-sex couples that were legally married in California may seek a divorce in that state, regardless of where the couple resides.

As more and more same-sex couples take advantage of the right to marry, it stands to reason that the predicament surrounding same-sex divorce will continue to grow; however, without the knowledge or resources to pursue a litigious divorce, same-sex couples may opt out of the marriage track to avoid being trapped in an unhappy marriage.  This potential chill on same sex marriage reveals that the battle to equalize, and divorce, is far from over.