Custody when there's no court order or agreement betw. parties

[3LittleBirds]

Soc:

I'm NCP, living in SC. CP lives in NC, right over the state line, w/ our 2 kids, DD14 and DD10. NC was martial residence. We separted in 2002; I left marital home and kids w/ her.

In 2003, I met w/ NC CSE and agreed upon my monthly child support obligation. A CS order was entered.

In 2004, XW filed for divorce in NC. In the Complaint for divorce, she alleged that there were 2 children born of the marriage, A born on .. and B born on . .  and that there were no pending claims for ED, alimony, CS, or custody. XW's lawyer also asked to be allowed to w/draw as counsel. In Affidavit in support of the Complaint, again it was alleged that 2 kids were born of the marriage. XW's lawyer limited her representation to the divorce alone.

Upon my lawyer's advice, I did not file an Answer.

The divorce was final in May 2004. In the Judgment, the Findings of Fact recite that there were 2 kids born of the marriage and that there weren't any pending claims re: custody, CS, etc... The Judgment grants dissolution. Nothing in the Judgment addresses custody, other than what I've written above.

At no time have my XW and I executed any written agreement re: custody, and as indicated above, the court's never addressed custody.

My XW insists that she has sole legal and physical custody.

I requested that our 2 kids be allowed to come to a Bahamian Island w/ my fiance, her Mom, sister, and brother, and me to attend our wedding next summer, all expenses to be paid by us. We will be gone for 1 week. Initially she refused to allow this because she didn't feel comfortable that "her children" would be around my fiance's family and didn't want them to be left alone. Please note, there is no reason for concern whatsover and she doesn't object to the kids being around my fiance's family any other time.

I then assured her that the kids would not be left alone except for when we all go to bed at night, as is typical in every household if the kids aren't sleeping in the room with their parents. She continues to insist that she doesn't want them to go because she doesn't want them to be left alone. Frankly, I call b.s on her reasoning, but I have not told her that.

She has repeatedly brought up her status as sole custodian and that I will see the kids when and if she lets me and that all decisions re: the kids belong to her. In other words, I have no rights whatsoever. I have her claims and excuses in writing.

Does she in fact have sole legal and physical custody?

What should I do to be able to have our children, who will then be 15 and 11, attend my wedding next year?

Thanks.

[socrateaser]

>Does she in fact have sole legal and physical custody?

If the custody issue has never been addressed by a court, and the court order shows that the two children were issue of the marriage, then you both have joint legal and physical custody.

Of course, if you file a petition to determine legal custody, the fact that she is the de facto primary custodian will give her a big edge in any proceeding (unless the kids actually wanted to live with you).

>What should I do to be able to have our children, who will
>then be 15 and 11, attend my wedding next year?

This is actually a weird situation. Ordinarily, if there were a custody order in place, you would need the other parent's signature to obtain passports for the kids. But, here there's no custody order, so you should be able to get passports without her signature.

Nevertheless, I would petition the NC court for custody and parenting time, and get things resolved so that you don't have to play fast and loose.

[3LittleBirds]

Soc:

Would a judge likely find my request that the kids travel with us and participate in my wedding reasonable? The kids want to go. And they are participating in their mother's wedding, which occurs the day before we leave for the Bahamas - if they don't go w/ us, they will spend that week w/ my XW's parents while XW is on her honeymoon. Any suggestions on the best way to present the request to the court?

Until I obtain a NC court order re:custody and parenting time, do you have any suggestions on how to deal w/ XW's assertions of being able to determine when/if I get to the see the kids? I imagine if I tell her that I am entitled to equal physical and legal custody of the kids until there is a court order she will deny that to be the case, but I would like to disabuse her of this notion. She briefly worked as a receptionist for a lawyer so she purports to "know what the law is" and proceeds to tell me what my rights are.

Thanks.

[socrateaser]

>Soc:
>
>Would a judge likely find my request that the kids travel with
>us and participate in my wedding reasonable?

Don't see why not.

Any suggestions on the best way to present the request to the court?

You just tell the court exactly what you plan in your petition, and explain why it's in the kid's best interests (they want to be involved).

>Until I obtain a NC court order re:custody and parenting time,
>do you have any suggestions on how to deal w/ XW's assertions
>of being able to determine when/if I get to the see the kids?

Smile a lot.

>I imagine if I tell her that I am entitled to equal physical
>and legal custody of the kids until there is a court order she
>will deny that to be the case, but I would like to disabuse
>her of this notion. She briefly worked as a receptionist for a
>lawyer so she purports to "know what the law is" and proceeds
>to tell me what my rights are.

Everyone plays guitar. Not every one is Eddie Van Halen or Larry Carlton. Similarly, everyone thinks that they know the law. However, most lawyers don't know the law outside of their specialty...and hey, we're about to appoint a U.S. Supreme Court Justice who probably couldn't find the law if it sat on her face.

Ahem...but, i digress. You are better served to bite your tongue, than to start a battle that can only be won in courtroom. Let your ex believe whatever she wants to believe. After the case is filed, your ex will discover that she needs to practice a little more before she starts advising you as to your legal rights.

[3LittleBirds]

Soc:
Thanks again; will start the proceedings ASAP. It would be so much easier if she could just be reasonable.

>Everyone plays guitar. Not every one is Eddie Van Halen or
>Larry Carlton. Similarly, everyone thinks that they know the
>law. However, most lawyers don't know the law outside of their
>specialty...and hey, we're about to appoint a U.S. Supreme
>Court Justice who probably couldn't find the law if it sat on
>her face.
I have similar concerns myself. But hey, we're supposed to trust Dubya and his assertion that she'll be an outstanding Justice and hey, after all, she is a very religious woman (that's so important when one is nominating a person for a lifetime position to the highest court in the land) I don't think he should be using this to garner support for his nomination since her religious beliefs have nothing to do w/ how she'll apply the law, or shouldn't. Guess we better hope for the best and prepare for the worst. Can you tell this is one of my hot buttons?

 Let your ex believe whatever she wants to believe.
>After the case is filed, your ex will discover that she needs
>to practice a little more before she starts advising you as to
>your legal rights.

I'm in a business where everyone thinks they know what should be done and how it should be done and my reaction is probably similar to a lawyer's - I have to actually take classes and pass a state test to be able to do this, but OK, you know better than I.

Regards.