August 2017

Is an Annulment Right for You?

If you follow pop culture at all, you will recall that a little more than ten years ago now, actress Renée Zellweger and country singer Kenny Chesney were briefly married. The marriage lasted only a matter of months. However, a divorce was not the legal action that they took to end their marriage—it was an annulment. Annulments are not as common as divorces because they are only allowed in certain circumstances, but it is worthwhile to discuss what they are in case they apply to a situation relevant to you.

Annulment Defined

While a divorce ends a marriage of two people who no longer want the marriage, an annulment essentially treats the marriage as though it never existed. In North Carolina, two people can request that a court annul their marriage if they can show that it is an invalid marriage. The technical terms that the state and the courts use are “void” and “voidable.” If a marriage falls into either of those categories, then a court can annul it.  Most of the situations below are voidable marriages, as opposed to void marriages.  The only void one is essentially that of a bigamous situation. Such a marriage is invalid from the beginning, but it is still best to request an official annulment.

Examples of Annulment-Worthy Marriages

North Carolina lists a few different situations in which the courts will grant an annulment to a married couple.

Family Members

If the marriage is an incestual one, then that marriage qualifies for an annulment, per North Carolina law. Specifically, the two parties must be closer than first cousins.

Age

If one of the parties is under the age of sixteen and there was no prior court order allowing the marriage, then it may qualify for an annulment. However, the situation is trickier if a child is involved. If the girl or woman is pregnant or has already had a child with the other party, then the courts will not annul such a marriage. The only exception is if the child unfortunately died, either at birth or afterwards.

Capability

If one of the parties is physically impotent, then that is a ground for annulment. Along a similar vein, if one of the parties was mentally incapable of entering into the marriage and understanding what it entailed, then the courts may grant an annulment.

Deception

If a man marries a woman under the impression that she is pregnant with his child and it then turns out that she actually was not, then he may have grounds for an annulment.

Seek Help

This was simply a very brief overview of situations that can lead to an annulment, as opposed to a divorce. If you think that your situation may fall into one of the categories that we mentioned, then reach out to us. We will be able to help you fully analyze your circumstances and compare them to the different fact scenarios that have gone before the courts of North Carolina to determine the best steps forward. Call the experienced family law attorneys at Powers Landreth PLLC today.

Resource:

ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_51/GS_51-3.html

Children Born Out of Wedlock – Legitimation and Paternity

There are many reasons why a man might want a child. The joys of fatherhood are plentiful. Children and parents often make memories that last their entire lives. As such, there is no limit to the reasons why a father, or even a mother, might want to make sure that the law recognizes a father-son relationship.

In North Carolina, if a married woman has a child, the state presumes that her husband is the father of the child. However, this is not necessarily so with an unmarried woman. If a child is born out of wedlock, and the woman is unmarried, the child then only has legal connection to her. In that instance, either the father will want the state to recognize the child as his through legitimization, or perhaps, the mother will want the state to recognize the father’s status to the child through a paternity process.

Legitimation

In North Carolina, for children who are born out of wedlock, there is a process called legitimation, which can allow them to have the same rights and privileges as children born in wedlock. The legitimation process, as opposed to the paternity process (discussed below), focuses on the status of the child, not necessarily that of the father.

In order to legitimize a child born in North Carolina, one of two things can happen. First, the father and the mother can marry. After the marriage, the state will automatically consider the child as legitimate.

If for whatever reason, the father and mother do not want to marry, then the second option is to involve the court system. The father will want to file a legitimation petition requesting legitimacy of his child. The father must name both the mother and the child as parties to the action. During the action, the father must convince the court that he is the child’s father. If after reviewing the evidence that the father presents, the court is satisfied and believes it, then the court will grant the petition and will declare the child legitimated. After that, the state will issue a new birth certificate containing both the mother’s and the father’s names. When legitimacy is established, paternity is not an issue.

Paternity

As already discussed, legitimation is more about the status of the child. Paternity, on the other hand, concerns the status of the father to the child. In other words, is a man the father of the child at issue? However, even if paternity is established, that does not necessarily mean that the state will consider the child as a legitimate one.

Paternity issues usually arise within or are attached to other court proceedings, such as suits for child support. Also, unlike the legitimacy action, anybody can file a paternity action—even the state can file the action if it believes it is necessary. If the court finds paternity, then the rights, duties, and obligations of the father will become the same as if the child was the legitimate child of the father, especially with respect to custody and support of the child.

Your Child, Your Fight, Our Help

Whether you are interested in establishing the legitimacy of a child to let the state know that the child is yours or you are interested in establishing paternity, so that the father finally helps with the child’s care, you will want to have somebody on your side. Navigating the differences between legitimation and paternity, finding and drafting the proper paperwork, and interacting with the North Carolina court system can become daunting after a while. When it comes to your family, you do not want a daunting process—you want a smooth process. Make sure to call the family law attorneys at Powers Landreth PLLC in Charlotte today to create such a smooth process for you.

Resources:

ncga.state.nc.us/EnactedLegislation/Statutes/PDF/BySection/Chapter_130A/GS_130A-101.pdf

ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_49/GS_49-16.pdf

Modifying Child Custody Orders

When a divorce involves children, the North Carolina court system may have to help the parents determine how the children will spend their time between the two parents.  In an earlier post, we briefly discussed child custody orders and explained that they were somewhat of a last resort in instances where the parents themselves could not agree on a custody arrangement.

After a custody order is set into place, it is usually in the best interests of everybody involved to abide by the order. However, custody orders are not set in stone. The courts can revisit them. Therefore, sometimes, one party will seek to modify a prior custody order.

The Law

According to North Carolina law, and as reaffirmed in a recent North Carolina Court of Appeals case, Laprade v. Barry, in order to modify a court child custody order, the party that argues for modification must show that a substantial change of circumstances is affecting the welfare of the child at issue. This change does not have to be a negative or harmful change against the child—it must simply be a substantial change.

After analyzing the evidence, if the court determines that a substantial change has occurred or is occurring, the court must then determine whether it would be in the best interests of the child to modify the custody order. When it comes to child custody issues, the courts generally want to know whether a certain decision will or will not be in the best interests of the child. So, if a custody order modification is not in the best interests of the child, then the parents must continue to abide by the existing custody order.

Laprade

In Laprade, the family had an existing custody order. The court gave primary physical care and custody to the father. The mother had secondary custody, and this was primarily because of actions she would take, such as repeatedly taking the child to the doctor alleging abuse from the father and reaching out to law enforcement with false claims.

In April of 2014, the mother argued that there was a substantial change of circumstances, pointing to things such as how the father’s girlfriend was the one primarily taking care of the child when it came time for the child to be with the father. After analyzing the evidence in the case, the court concluded that the circumstances had changed. For instance, the mother no longer took the child for unnecessary doctor visits and she no longer contacted law enforcement unnecessarily. Thus, in the court’s eyes, the mother’s circumstances changed for the better.

On the other hand, the father’s did not; they worsened. In fact, the court indicated that the father had poor communication habits with the mother, would not allow the child to talk to the mother in private while under his care, and refused to give the mother his girlfriend’s contact information even though the girlfriend substantially cared for the child.

Ultimately, according to the court, there was a substantial change of circumstances, and the best interests of the child would dictate to modify the custody order.

Your Child Custody Order

Going through a divorce can be tough. When children are involved, things might become harder. However, they do not have to be unbearable. We want to make sure that you get the custody arrangement that you deserve with your children. That is why we are here ready to help you through the process. Make sure to contact Powers Landreth PLLC in Charlotte today with your child custody needs.

Using a Courthouse Dog for Emotional Support

Appearing before a judge in court, not to mention cases that involve a jury, can be intimidating. For victims who have been sexually assaulted, emotionally tormented, or physically beaten, facing the perpetrator in court can be a truly traumatic event. Luckily, an attorney will help walk you through this process and ensure that you are ready when the time comes to face your violent partner, or will help your child feel secure, brave, and truthful. Additionally, there are new options emerging in North Carolina to help witnesses and victims in court, such as the use of courthouse therapy dogs.

Courthouse Dog, Teghan, to be First Therapy Dog Used in North Carolina Court

While the concept is still catching on in North Carolina, many other states have adopted the use of courthouse dogs as sources of therapy during high-stress cases for people exposed to domestic violence, and other victims. Recently, Johnston County became the first to allow the use of a courthouse dog, according to WRAL News. Teghan, a yellow lab, will help ease the pain, fear, and anxiety that many people feel in Johnston County. Local businesses have paid for veterinary costs, the dog’s training, and other expenses all in an effort to level the playing field for victims in court.

How the Defense Uses Your Anxiety, Fear, and Other Emotions to Your Disadvantage

Being confident, articulate, and calm in court is a vital part of your case’s success, whether you are appearing before a judge or a jury. This is always much easier said than done, as even preparation by your attorney can still leave you with high strung nerves. For Charlotte victims of domestic violence, sometimes no amount of practice can prepare them for facing their abuser in court. According to the U.S. Department of Justice, some of the most common mistakes that witnesses or victims make on the stand include:

• Not speaking clearly or loudly;
• Failing to understand the question;
• Appearing disheveled or uneasy;
• Losing their temper;
• Not fully explaining yes or no questions with further detail;
• Failing to appear positive or confident;
• Volunteering information; and
• Not abiding by the courtroom rules.

A courthouse therapy dog may provide the reassurance, comfort, and feeling of security to put many of your anxieties to rest. While a therapy dog may not be available in your case, a compassionate attorney will use other methods and strategies to help you in the courtroom.

Enlist the Help of an Experienced Charlotte, North Carolina Attorney Today

A compassionate domestic violence attorney with experience in such cases will understand the fragile emotional and psychological state that you are coming from. They will provide professional preparation and do everything in their power to put you at ease for your time in court. If you are seeking relief from an abusive relationship, please feel free to contact the Charlotte attorneys of Powers Landreth PLLC today or at your soonest availability.

Resources:

wral.com/johnston-county-hires-dog-to-comfort-courtroom-victims-witnesses/16770705/

justice.gov/usao-mdpa/victim-witness-assistance/tips-testifying-court