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Author Topic: Joint Legal Custody & Its Effects  (Read 1414 times)

3LittleBirds

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Joint Legal Custody & Its Effects
« on: Dec 16, 2005, 10:07:18 PM »
Soc:
Ex and I split over 3 yrs ago; NC was marital home; I moved across state line to SC. Left the kids w/ Ex in NC. No court ever addressed custody. This Oct. kids tell me they want to live with me because of Ex's partying, drugs, etc.. I get an EPO in NC Ct and then at the 10 day hrg, I get Temporary Custody, w/ Ex getting visitation every Saturday from 9-6. Under the Temp Order, I have to continue transporting kids to NC schools, which is approximately 500 miles/week.

My lawyer is trying to settle custody w/o it going to trial and has asked me to sign a Custody Agreement for entry as a Consent Order. Ex has agreed to give me physical custody, but she wants joint legal. Ex also wants youngest daughter to stay in NC school, but says it's ok for eldest to move to SC school in January.

The Agreement does not define "joint legal custody." When I originally went to my lawyer, he said that if the kids went back to her I would want joint legal, but that if they stayed w/ me, I wouldn't want joint legal. Now, he won't tell me why he said that then but isn't sticking to it now.

Next, the Agreement does not address how long the Ex thinks the youngest should go to NC schools.

The Ex also will not come to pick up the kids for visitation - wants us to meet 1/2 way. When the shoe was on the other foot, I was solely responsible for picking up and dropping off.

Ex refuses to agree in Agreement to allow SC assume jurisdiction over the case after this Order is entered. She lives in NC, but works in SC; the kids are residents of SC, their doctors will be in SC, etc...

We're going to Ct on Monday - in theory to sign the Agreement and have it entered as a Consent Order. I'm worried - a lot.  

My questions:

1.   I'm terrified of joint legal because Ex and I can't agree on what day of the week it is. My lawyer keeps saying joint legal doesn't mean anything, but from what I've read in NC case law, it means Ex gets decision making authority along with me. Should I agree to joint legal WITHOUT it being specified that in the event that we can't agree, I have final authority?

2.  Taking the youngest to NC school is cost prohibitive, is going to ruin my business, ruin me financially, and it violates NC statutory and case law because she's no longer domiciled in NC, etc.. My lawyer doesn't think I should fight this issue. What do you think?

3.  On the meeting 1/2 way for visitation drop offs/pick ups, what's going to be my best argument against it. Again, my lawyer is saying don't rock the boat.

4.  What can I do about the jurisdiction issue? If I try to have SC take jurisdiction, and she fights it, what do you think will happen? Again, my lawyer is saying don't rock the boat.

5.  Is it time to find another lawyer?

Thanks again.


socrateaser

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RE: Joint Legal Custody & Its Effects
« Reply #1 on: Dec 17, 2005, 01:05:39 AM »
>My questions:
>
>1.   I'm terrified of joint legal because Ex and I can't agree
>on what day of the week it is. My lawyer keeps saying joint
>legal doesn't mean anything, but from what I've read in NC
>case law, it means Ex gets decision making authority along
>with me. Should I agree to joint legal WITHOUT it being
>specified that in the event that we can't agree, I have final
>authority?

Joint legal is the authority to make major decisions about the child(ren)'s health and welfare, such as what schools to attend and whether to get orthodontia that is only cosmetically necessary, rather than medically. Joint legal does not grant the non-custodial parent the right to tell you whether the kids can play softball or checkers after school on Wednesday.

And, as a practical matter, when parents are separated by considerable distances, once an order is in place, the non-custodial parent is simply not in a position to exercise any regular decision making authority, and because of the nature of joint custody, which basically says that either parent can overrule the other's decision at will, anything that she says, you can immediately overrule and since you have the kids, you will win. This is the most common complaint of the non-custodial parent -- they really have no practical say in the child's life, regardless of what their legal rights may be.

So, it appears that you will soon have the shoe on the other foot, as it were.

>2.  Taking the youngest to NC school is cost prohibitive, is
>going to ruin my business, ruin me financially, and it
>violates NC statutory and case law because she's no longer
>domiciled in NC, etc.. My lawyer doesn't think I should fight
>this issue. What do you think?

I think it's unlawful for the court to even attempt to order this. The court cannot order the school to violate state law and permit the child to enroll in a school district where the child doesn't live, and your attorney should simply say that this isn't something that the court can control, and that if you agree to it, you are agreeing to unlawful subject matter, which means that your agreement is void as against public policy (of no force and effect), and therefore you, and I do mean you, as custodial parent, can enroll your child where you live and tell the other parent to stick it where the sun don't shine. Nevertheless, I wouldn't agree to it, because it's unlawful, and your ex's attorney has a legal duty to explain that to his/her client.

So, ask your attorney about this and have him/her discuss it with opposing counsel and get this particular issue moved off the table, because it's hay (which is halfway to horse!@#$) and it's costing you and your ex unnecessary legal fees arguing over it.

>3.  On the meeting 1/2 way for visitation drop offs/pick ups,
>what's going to be my best argument against it. Again, my
>lawyer is saying don't rock the boat.

I agree on this one. It's more than fair that you share the cost of transportation incident to exhanges of custody.

>4.  What can I do about the jurisdiction issue? If I try to
>have SC take jurisdiction, and she fights it, what do you
>think will happen? Again, my lawyer is saying don't rock the
>boat.

As soon as six months pass, NC will no longer have jurisdiction over custody. PERIOD. Leave any reference to this issue entirely out of the agreement and SC will obtain jurisdiction in six months by operation of law.

>5.  Is it time to find another lawyer?

I think that would be a bad move. You want to settle on reasonable terms. Going to court is expensive and you're putting yourself in the hands of someone who really doesn't give a rat about your interests if you do that (i.e., the judge). At least in a settlement, you get to have one hand in the pot.

 

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