Charlotte, NC (PRWEB) May 08, 2013
On April 2, 2013, North Carolina State Senator Clodfelter filed Senate Bill 610 entitled “An Act to Amend the Laws Pertaining to Child Custody to Incorporate a Presumed Shared Parenting Standard”. The Bill proposes to revise N.C.G.S. § 50-13.2 by delineating the proposed State policy on child custody and altering the terms of awarding child custody. Currently, § 50-13.2 states that a Judge must make an award for child custody based on what best promotes the interest and welfare of the child. In making that determination, the Court must consider all relevant factors, such as acts of domestic violence and the safety of the child. An order for child custody must include findings of fact which support the Judge’s determination of what is in the best interest of the child. The current statute allows for a great deal of discretion for judges when making an award for child custody. Based on the evidence presented, the Judge may make an award for child custody as he or she sees fit, as long that award promotes the best interest of the child. Senate Bill 610 proposes to eliminate some of the Court’s discretion by defining the State public policy with regard to child custody, creating the presumption of shared responsibility standard by revising the factors the Court must consider when making an award for child custody, and introducing the idea of a joint parenting agreement.
Senate Bill 610 proposes to define State policy with regard to child custody as one that encourages “both parents to share equitably in the rights and responsibilities of raising their child” even after the marriage or relationship ends. To encourage this policy, the Bill proposes promoting certain ideals, programs, laws, and court practices that encourage and support the maximum participation of a child in the parents’ lives. Furthermore, the Bill’s proposed State policy purports to “[e]nsure that a child will have maximum contact with both parents through a presumption of shared responsibility unless it has been established based on a preponderance of the evidence that one of the parents is unfit or obstructs a healthy relationship with the other parent.” This presumed shared responsibility standard requires that each parent have as close as possible to an equal amount of time with the child, but not less than thirty-five percent of the amount of time with the child. And finally, the proposed State policy also encourages “parents to take responsibility for their child by setting the expectation that parenthood will be a significant and ongoing responsibility requiring the creation of a joint parenting agreement.” A “joint parenting agreement” is defined in the Bill as a plan crafted and mutually agreed upon by parents addressing matters concerning legal and physical custody of the child.
Family law attorneys throughout North Carolina have had strong reactions to Senate Bill 610 and the policies stated therein. According to the attorneys at Miller Bowles Law, while the Bill promotes noble goals, such as uniformity and shared custody, those goals are thought to be lofty and potentially unachievable. Furthermore, it is the opinion of the attorneys at Miller Bowles Law that the Bill is impractical in many important areas. First, every child custody case is unique and distinguishable from another; therefore, uniformity is not a realistic expectation. Second, certain terms used in the Bill, such as “extraordinary circumstances” and “unfit”, are undefined, and thus left up to the interpretation of each Judge. A Judge may use these ambiguous terms in order to arrive at the result he or she believes is in the best interest of the children, overriding the overall goal of uniformity. Third, while it is the hope of all involved that the parties will be able to communicate effectively and compromise with regard to the custody of their child, often times that is not the case. Therefore, expecting the parties to create a joint parenting agreement is unrealistic in light of the often contentious nature of child custody disputes. And finally, the attorneys at Miller Bowles Law believe the Bill takes away a much of a Judge’s discretion and use of common sense by requiring the Judge to abide by a presumed shared responsibility standard by using both certain factors set forth in the Bill and the joint parenting agreement created by the parties.
While family law attorneys are always striving to ensure the best interest of the child, the attorneys at Miller Bowles Law believe that Senate Bill 610 does not adequately provide for that interest. It seems that the Bill changes the current law, which is broad and encourages a settlement in the best interest of the child, to one that constrains judges’ discretion and encourages additional litigation. North Carolina family law attorneys are paying close attention to Senate Bill 610 as it makes its way through the North Carolina House and Senate this session. Regardless of the Bill’s future, speaking with a family law attorney should always be a parent’s first step when dealing with the issue of child custody to ensure the best possible outcome for both the parents and the children alike.