I wrote about the opinion in Green v. Carter, 900 S.E.2d 108 (N.C. App., March 19, 2024), in this post: https://civil.sog.unc.edu/an-unmarried-partner-with-joint-legal-and-physical-custody-is-not-a-parent-and-cannot-be-ordered-to-pay-child-support/ The court of appeals held that the partner of the biological mother of a child (Green) could not be ordered to pay child support, even though she and the mother of the child (Carter) decided to have the child together while they were living together, agreed to the use of artificial insemination with a sperm donor to create the child, and held themselves out as the “parents” of the child for years until their romantic relationship ended. The partner (Green) was granted joint legal and physical custody of the child after a trial court concluded that the biological mother (Carter) had waived her constitutional right to exclusive custody by holding the partner out as the child’s co-parent and by intentionally allowing the partner to develop this parent-like relationship with the child without indicating the relationship was not a permanent one. But when the trial court determined that the partner should pay child support, the court of appeals reversed, citing G.S. 50-13.4 and stating: “[b]ased on long-established North Carolina law, … [a person] cannot be required to pay child support unless she is the child’s mother or father or has agreed formally, in writing, to pay child support.”
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Tag: child support
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An unmarried partner with joint legal and physical custody is not a parent and cannot be ordered to pay child support.
The North Carolina Court of Appeals recently reminded us that custody rights do not make a person a parent. So, while a person may have court-ordered equal custody with the child’s biological parent, that fact alone does not mean that person can be ordered to pay child support. In Green v. Carter, decided by the court of appeals on March 19, 2024, the court held that “[b]ased on long-established North Carolina law, … [a person] cannot be required to pay child support unless she is the child’s mother or father or has agreed formally, in writing, to pay child support.” Dissent by Hampson.
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Registration of a Foreign Custody Order Pursuant to GS 50A-305 Does Not Register the Child Support Provisions in the Same Order
A child support order entered by a court in a jurisdiction other than North Carolina must be registered in North Carolina pursuant to the Uniform Interstate Family Support Act, N.C. Gen. State. Chapter 52C (“UIFSA”), before it can be enforced or modified in North Carolina. G.S. 52C-6-609. A child custody order entered by a court in a jurisdiction other than North Carolina is not required to be registered before it can be modified or enforced in North Carolina, see blog post https://civil.sog.unc.edu/does-a-foreign-custody-order-have-to-be-registered-before-our-court-can-enforce-it-or-modify-it/, March 6, 2015, but the Uniform Child Custody Jurisdiction Act, N.C. Gen Stat. Chapter 50A (the “UCCJEA”) does provide a registration process for a foreign custody order when a parent or other custodian wants assurance that North Carolina courts will recognize and enforce an out-of-state custody order. G.S. 50A-305.
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Is it present income? Lump sum payments and child support
In Klein v. Klien, filed October 3, 2023, husband argued on appeal that the trial court erred in failing to include in the calculation of wife’s income for the purpose of setting child support amounts she received when she withdrew funds from a retirement account. Wife testified that she “cashed in an annuity in order to pay off some of [her] bills and credit card debt that [she] had as mostly legal fees and some other purchases.” She withdrew the funds in 2020. The child support hearing was held in June 2021.
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North Carolina has new Child Support Guidelines
Pursuant to GS 50-13.4(c1), the North Carolina Conference of Chief District Court Judges recently reviewed the North Carolina Child Support Guidelines. The Chief Judges considered comments and information from the North Carolina Administrative Office of the Courts in the form of a report from the national Center for Policy Research, recommendations from judges and practicing attorneys across the state, and suggestions from the public during a public hearing held on June 2, 2022. Following this review, the Chief Judges updated the Schedule of Basic Child Support Obligations to reflect current tax rates, the most recent Consumer Price Index and the current federal poverty level. In addition, the Chief Judges adopted a few changes to the substantive provisions of the Guidelines discussed below.
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It is time to review the North Carolina Child Support Guidelines
N.C. Gen. Stat. 50-13.4 requires the North Carolina Conference of Chief District Court Judges to prescribe uniform statewide presumptive guidelines for determining the child support obligations of parents, and to review the guidelines periodically (at least once every four years) to determine whether their application results in appropriate child support orders. The Conference of Chief District Court Judges currently is reviewing the statewide presumptive child support guidelines.
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Child Support: Deviating from the Guidelines
Recently, in Kincheloe v. Kincheloe, _ N.C. App. _ (June 15, 2021), the North Carolina Court of Appeals engaged in a lengthy discussion of the law relating to the entry of orders that deviate from the Child Support Guidelines, giving me an excuse to post this short review of that law. To summarize at the beginning of my post rather than at the end, there are two key points to keep in mind when entering child support orders. First, any provision in an order that contradicts or is different than the specific terms or instructions in the Guidelines constitutes a deviation, and second, any deviation must be supported with detailed findings of fact regarding the reasonable needs of the children and the relative ability of the parents to pay support. Continue Reading
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Child Support: Extraordinary Expenses in Guideline Cases
The North Carolina Court of Appeals recently affirmed the trial court order in Madar v. Madar, (Dec. 31, 2020), that required both parents to pay costs associated with their child’s mental health treatment in a residential treatment facility in addition to their basic child support obligation pursuant to the Child Support Guidelines. The court held that the Child Support Guidelines give the trial court the discretion to determine when parents should be ordered to pay such ‘extraordinary expenses’ as part of their child support obligation. Because ordering the payment of extraordinary expenses does not constitute a deviation from the Child Support Guidelines, a trial court is not required to make findings of fact to support its decision that the expenses are reasonable and necessary or that the parties have the ability to pay.
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Prospective Child Support: What is it and how is the amount determined?
In the post “Retroactive Support: What is it and how is the amount determined”, I wrote that the law defines retroactive support as support due for the time before a complaint or motion seeking support is filed, Briggs v. Greer, 136 NC App 294 (2000), and that the amount of retroactive support owed by an obligor can be determined based either on the Child Support Guidelines or on the parent’s share of actual expense incurred on behalf of the child during a period of time in the past. NC Child Support Guidelines, March 1, 2020, p. 2.
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No Contempt for the Nonpayment of Money Without Actual Evidence of Ability to Pay
In 2015, I wrote two blog posts summarizing the law relating to the use of contempt to enforce orders to pay support. No Default Judgment in Contempt (May 1, 2015) and Contempt: Establishing Ability to Pay (May 8, 2015). Recent appellate opinions justify revisiting this topic.