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Mudslinging in North Carolina Child Custody Cases

According to www.dictionary.com, mudslinging is “an attempt to discredit one’s competitor, opponent, etc., by malicious scandalous attacks.” In North Carolina, a no-fault divorce means that the only reason you need for a divorce is a one year separation. Division of marital property is generally an equal division, and the only type of fault the court will entertain is financial fault related to assets and debts. While marital fault isn’t required for alimony, it is specifically listed in our state laws as a defense and in some cases the sole reason alimony is or isn’t awarded. While the law does not call it fault or marital fault, the behavior of parents becomes front and center in a child custody case. There are rules of evidence, rules of procedure, and local rules for each court, and the law itself. However, a judge has the authority in his or her discretion to hear almost anything if it is relevant to a child’s welfare. A parent’s judgment and fitness can be demonstrated by a wide range of events.

Is Mud Slinging Inevitable?

Probably, unless you choose alternative dispute resolution. See more about in the last paragraph of this article. Based on my experience, I don’t think the majority of people truly want to sling mud at the beginning of a case, although they are often hurt and angry. They usually just want to get a custody agreement as quickly as possible at a reasonable cost and move on with their lives. But as litigation takes its course, the allegations of bad behavior operate like the threat of nuclear weapons. When one side starts to pile them up and test them, the other side takes offense and acquires his or her own stockpile and begins to test them. Many cases settle through negotiation and mediation but when they don’t, the slinging accelerates rapidly thereafter. By the time a child custody case reaches the courtroom, mudslinging seems inevitable regardless of whether a parent is trying to avoid mudslinging or be the one slinging. Some end up doing so if only because they feel a response to the other party’s allegations is necessary.

The Down Side of Mudslinging

No parent who testifies is without sin. By definition, the very nature of your past relationship is intimate. When you begin dredging up things from the other person’s past, there will always be a response which will usually include your deepest darkest secrets as well. Fault-based alimony trials can be intense but the worst case scenario is a long and vicious custody battle. In the worst of the worst case scenario, an outsider looking in might wonder if the judge should award custody to either parent. Meanwhile, the family, friends and loved ones sit in the audience for the feature presentation. Once the allegations have been made, they can never be undone. Even when the children don’t testify in the case, they are usually the main causalities of the slinging. Children grow up. Anyone has the right to access a recording of a trial or a copy of the file that includes the documents each parent files at the courthouse. Once a lawsuit is filed, it becomes public record, meaning anyone can search the records and see all the “dirty laundry.”

How Can You Minimize the Damage?

First, if you’re in a custody case, try to step back and look at the case from your child’s perspective. What you say about his or her mom or dad matters. Is it possible to compromise and reach an agreement that is adequate to meet your most important goals and avoids a trial? Second, observe the Golden Rule as applied to parenting, to “do unto others as you would have them do unto you.” This is difficult, especially when the other parent is talking about you but the checks and balances become apparent when cross examination of the other party rolls around. As the other parent has to explain why he or she said something about you, you’ll be in a much better place and there will be less mud to sling.

Can You Avoid Mudslinging Altogether?

Yes, mudslinging can be avoided if you both parties consent to use the alternative dispute resolution (ADR) process before filing a lawsuit. But you can still choose to use ADR after a lawsuit is filed. ADR can be used for any type of family law matter, not just those pertaining to children, and it is private because it takes place in an office of one of the attorneys. Mediation is the process of negotiation outside of court with a neutral third party called a mediator. The mediator doesn’t make any decision. He or she helps the parties find common ground (each side in separate rooms) with the goal of signing an agreement, that day in some cases. Arbitration is a process by which the parties select a neutral third party called a certified arbitrator to make a decision for them. The arbitrator makes a ruling on their case just like a judge does. Collaborative family law (CFL) is the most unique type of ADR because it is non-adversarial. All four people, the parties and their attorneys, are at some point together in a room in a “four-way meeting” together. Instead of arguing about fault and past incidents, those using the CFL process work together to create solutions for their problems. If they are successful, a written agreement is signed and the case is finished.

Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. www.AmyEdwardsFamilyLaw.com ©

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