Legal Question in Family Law in North Carolina

How long have your children been gone from North Carolina? Are there any prior custody orders? Where did the children live for the six month period before they left North Carolina?

Assuming that there are no prior custody orders and that the children lived in North Carolina for at least 6 months before they were taken by your wife and that the children have been gone less than 6 months in Detroit, then you can file a petition for temporary custody here. I would recommend that you get a lawyer to maximize your chances. If money is tight, there are lawyers who might provide free legal work or limited legal work. Check with your local bar association or the Mecklenburg Self-Serve Center at www.nccourts.org. There is also a self-help center in Mecklenburg County which has many of the forms if you have a Charlotte address.

If the children lived in North Carolina for less than 6 months or if they have been gone from North Carolina for more than 6 months and there are no custody orders, then you will need to file the petition for custody in Detroit. In such case, you will need to speak with a Michigan family lawyer.

Generally, there are 2 kinds of custody: legal and physical. Legal refers to access to school and medical records or consent and is almost always joint. Physical is where the kids live on a daily basis - who bathes, clothes and feeds them. Physical custody is primarily with one parent with visitation in the other. Because of the geographic distance, it is possible that the non-custodial parent will get the child for longer periods of time in the summer or during holiday breaks. Transportation and the costs thereof will have to be worked out. You don't indicate the ages of the children. The overriding factor is what will be in the child's best interests. So you will have to prove to the court that it is in the children's best interests to be with you, not that you are a "better" parent. To prove best interests of the children, it may help to present the testimony of a child psychologist who has the chance to observe both parents interact with the child. Testimony from neighbors and school officials may also be helpful. This can get pretty pricey fairly quickly.

I don't know the law of Michigan, but there is no set age in North Carolina where the child can express his or her preferences. In some states, like Georgia, the child's preference is controlling when the child is over 14, but just a factor when the child is aged 11-14. The more articulate and persuasive a child is, then have the child meet privately with the judge and explain whether the child would prefer to reside with you or the mother. If nothing else, it will be one factor for the court to consider.

There are some written and unwritten rules - courts generally do not like to separate children. Also, some courts have a bias towards placing very young children with their mother. If you have young children, be prepared to explain to the court how they are going to be cared for while you are at work. If its with the grandparents, then have them testify too. Was there any misconduct or abuse? Some judges don't like extra-marital affairs. Again, this is why you need a lawyer or at least need to talk to a local lawyer who knows the judges and their prejudices and biases, if any.