Ward and Smith acquire the primary impression case of the function a dad or mum’s recruitment standing can play in youngster custody disputes

December 30, 2021

Ward and Smith attorneys Chris Edwards and Alex Dale have won an appeal that has greater implications for service members in custody disputes in North Carolina.

“Custody arrangements are already a stressful, emotional, and complex ordeal,” said Alex. “But when one or both parents are in the military, the situation becomes even more difficult and sometimes even more controversial, as in Munoz v. Munoz.”

Chris and Alex represented the father, who was granted permanent custody of his daughter MM by the court of first instance. A battle stemming from the mother’s possible posting to Iraq and the father’s wish to move to the west coast.

In 2018, the mother, a member of the US Army, and the father separated because she was about to work. They mutually agreed to a preliminary custody order granting the father primary physical custody of MM. This agreement allowed the father and daughter to move to California, where his family could take care of children while he was working.

After the move, the mother learned that she would not be deployed and applied for the consent order to be lifted. After an oral hearing, the court of first instance issued a new temporary injunction and again granted custody of the father. Less than a year later, the court would award permanent physical custody to the father.

The mother appealed for two reasons.

First, she argued that the court did not adequately consider the Ramirez-Barker factors, a set of criteria used to determine whether a move is in the best interests of the child. Applying these factors, a tribunal asks:

  • whether the move improves the child’s life;
  • what are the motives of the custodial parent applying for the move;
  • the non-custodial parent has legitimate grounds to oppose relocation; and,
  • What is the likelihood that a realistic visit plan can be created?

In this case, the Court of Appeal found that “the Ramirez-Barker factors are not a mandatory checklist for judicial proceedings; the primary objective, as always, is the best interests of the child.”

In its findings, the court of first instance had focused on each parent’s support system and found that both parties were dependent on family assistance. However, the father had family available and was living with them at the time. The mother had no family or support system close by. Therefore, the appellate court could not say “that the mother has shown that the court abused its discretion in this matter”.

Second, the mother alleged that the trial court violated NC General Stat. Section 50-13.2 (f). This law provides special protection for members of the armed forces in custody matters by prohibiting the courts from considering the possible future use of a parent as the sole basis for determining the best interests of the child.

Here the appellate court concluded that Section 50-13.2 (f) did not prevent the courts of first instance from considering it as one of many factors. Since the court of first instance concentrated primarily on the respective support systems of the parents and only referred once to the possible use of the mother, the appeals court was convinced that the possible use of the mother was not used as the “sole basis for establishing the best interests of the child” would.

The appeals court upheld the order of permanent pre-trial detention.

The North Carolina General Assembly passed Section 50-13.2 (f) as part of the Uniform Deployed Parents Custody and Visitation Act. This uniform law has been adopted by at least 10 states, including North Carolina. The decision of the Munoz Higher Regional Court seems to be the first nationwide decision to deal with this regulation of the Unified Law. “This was a very significant case because it appears to be the first to interpret the general statute with military parents,” noted Chris. “However, despite the clarity of the court, it is still very difficult to say what will happen in such custody cases. It is always best to consult an experienced family law attorney.”

Chris Edwards and Alex Dale are both attorneys at law in Ward and Smith’s Wilmington office. If you need help with a calling, reach out to a member of our appointments team. If you need help with custody matters, divorce, or separation, reach out to a member of our family law team.

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