CM WHITENER LAW

SCHEDULE YOUR CONSULTATION TODAY

Blog

Can I take my children out of state?

Posted by CM Whitener on August 14, 2013 at 5:50 PM Comments comments (0)


A few people have asked whether or not they can take their children out of their homestate when a custody order exists. The main concern is often what legal consequnces exist for doing so. An issue also arises when no custody order exists and a parent wants to move, but the other parent does not want it to happen.

Where there is no custody order

When no custody order exists, the parents should work on establishing a parenting agreement and determine where the child should live.  However, without a custody order or agreement in place, it is hard to limita parent's rights to remove a child from the state. 

If a parent is removing a child for the purpose of avoiding North Carolina having jurisdiction or for the purpose of prohibiting the other parent's accessto the child, it could be deemed a crime under North Carolina law. Parental abduction and child kidnapping laws may come into play.

If the other parent challenges this legally, the court will look at:

  • Your motivation for moving
  • The effect the move will have on your child
  • How the move will impact the other parent's ability to have contact with your child
  • What the living arrangement will be in your new location
  • Other factors
A parent who wants to prohibit a move out of state may file a Temporary Emergency Ex parte Order to take custody of the child where they can show that harm may come to the child because of the move.

Before you move a child out of state, consult with an attorney. 

Where there is a custody order/agreement

If your custody order prohibits moving without parental consent or at all, then you cannot remove your child from the jurisdiction of the state without seeking a modification. You must be careful about ignoring such an order because the other parent has a right to use the force of law to have you abide by it. 

Read your order and see what stipulations exist as to removing the child from the state of jurisdiction (also known as the "home state.") 

Jurisdiction

In custody matters the jurisdiction follows the child. Wherever a child has lived for the six months preceding the instution of an action, that court most often has jurisdiction unless the parties agree otherwise or another order exists. 

Where another order exists in a different jurisdiction, that state's order will be given full faith and credit under the https://www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf" target="_blank">Uniform Child Custody Jurisdiction and Enforcement Act. Which means the new state will horor the old state's order. 


Whenever you have a situation where parents are living separately, it is a good practice to have a parenting agreement or a custody order in place. 

If you have specific questions with respect to child custody and child support issues contact an attorney licensed in your jurisdiction. The information provided in this North Carolina law site blog is for educational purposes only.

Who gets the child tax credit?

Posted by CM Whitener on August 8, 2013 at 12:00 AM Comments comments (0)


"I am a non-custodial father that pays a non-court-ordered child support monthly. While drafting a child support agreement, me and the mother disagreed on who can claim the child. I requested we alternate years. She's of the opinion as she is the custodial parent, she HAS to be the one to claim her. Is there any truth to this?"


The question as to who has the right to claim dependents is one that arises often in co-parenting situations. Where one parent has primary physical custody and the other provides child support or the parties have joint legal and physical custody, the issue is often a murky one. 

The IRS has specific rules when it comes to guidelines for a "qualifying child of more than one person." Claiming a child for tax purposes comes with a number of tax benefits:

 

 

  • EITC,
  • Dependency exemption for the child,
  • Child tax credit,
  • Head of household filing status,
  • Credit for the child and dependent care expenses, and
  • Exclusion for dependent care benefits.

 

From the IRS:

Children of divorced or separated parents(or parents who live apart). In most cases, because of the residency test, a child of di­vorced or separated parents is the qualifying child of the custodial parent. However, the child will be treated as the qualifying child of the non­custodial parent if all four of the following state­ments are true.

1. The parents:

a. Are divorced or legally separated un­der a decree of divorce or separate maintenance,

b. Are separated under a written separa­tion agreement, or

c. Lived apart at all times during the last 6 months of the year, whether or not
they are or were married.

2. The child received over half of his or her support for the year from the parents.

3. The child is in the custody of one or both parents for more than half of the year.

4. Either of the following statements is true:

a. The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a de­pendent for the year, and the noncus­todial parent attaches this written dec­laration to his or her return. (If the decree or agreement went into effect after 1984 and before 2009, see Post-1984 and pre-2009 divorce decree or separation agreement, later. If the decree or agreement went into ef­fect after 2008, see Post-2008 divorce decree or separation agreement, later.)

b. A pre­1985 decree of divorce or sepa­rate maintenance or written separa­tion agreement that applies to 2012 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the non­custodial parent cannot claim the child as a dependent, and the non­custodial parent provides at least $600 for the child's support during the year.

The IRS further provides tests to determine what level of support a parent provided during the taxable year. (Page 15 of this document has a worksheet to determine your level of support.).  If a noncustodial parent meets the special rules for a shared child, he (or she), may claim the child for certain specific tax purposes (an ex­emption and the child tax credit), but not those with a residencey requirement such as head of household filing status, the credit for child and dependent care expenses, the exclusion for dependent care benefits, or the earned income credit.

Waiver

The custodial parent has the presumptive right to claim tax benefits of a qualifying child. However, those rights may be waived for a specific tax year or multiple tax years with form 8332: Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent



If you have specific questions with respect to child custody and child support issues contact an attorney licensed in your jurisdiction. The information provided in this North Carolina law site blog is for educational purposes only.