Annulments are Hard to Come By in North Carolina

The calls – they come in a few times a year – go something like this: “I met this person the other night. I thought it was love. We got married. We both decided it was a bad idea! Since we’ve only been married 2 days, can we get an annulment? I don’t want to have to wait a year to get a divorce when I’ve only been married 2 days.”

I usually have to give these callers bad news. Annulments are hard to come by in North Caroline. By statute, annulments are available if:

  1. You’ve married someone you are related to closer than first cousins or someone who is your double first cousin (imagine what that would do to your family tree!)
  2. One of the couple is under 16 and the other is over 16, unless there has been prior court approval or unless the young lady under 16 is pregnant;
  3. You’ve married someone who is already married (bigamy);
  4. One of the parties was legally incompetent, meaning that he or she has been or could be declared incompetent and in need of a guardian.

Most likely, the legislature didn’t want a “shortcut” to get out of marriages right away because they wanted marriage to be entered seriously. Legislators may have believed that having a rule that marriage cannot be undone easily would cause couples to reflect more before tying the knot (although that obviously hasn’t worked with the callers I’m writing about).

As you can see from the list, there is nothing in the statute allowing annulments simply because marriage has been very brief or has not yet been consummated. If you don’t fit one of the listed categories, under North Carolina law you and your spouse must be separated (out from under the same roof, and acting like you are separated) for one year before either party can file for divorce. Some other states allow divorce after shorter period of separation for residents of those states, but moving your residence would be necessary.

On a related question, North Carolina law does not recognize common law marriage. In North Carolina, a valid marriage occurs only after obtaining a marriage license and having the marriage performed by an authorized minister, or by a magistrate, or by the customs of any religious denomination or any recognized Indian tribe. Where common law marriage is recognized, like in South Carolina, couples are regarded as married if they have resided together as if they were husband and wife for some substantial period of time, but have never had a marriage license.

The N.C. legislature just repealed a very old law making it a crime for an unmarried man and woman to cohabit. Although district attorneys did not enforce that law, it recently cost a Pender County Sheriff’s Office Dispatcher her job, bringing the law to the legislature’s attention.

Since 1995, North Carolina has had a law making marriages between same gender persons not valid here, even if they were lawfully entered in another state. This statute was enacted shortly after Hawaii decided to allow same-gender marriages.

North Carolina allows persons under 18 to marry under some circumstances. Permission by a parent having sole or joint legal custody enables someone between 16 and 18 to marry; consent of both parents is not required. Persons between 14 and 16 can marry if the young woman is pregnant or has had a child, but only if a judge concludes it is in the best interest of the underage party or parties to marry.

Some of North Carolina’s laws about marriage are as old as the state itself, and some are quite new. Because society’s ideas about marriage change over the years, laws change too, although not always at the same pace.

“Safe Surrender” is a Good Last Resort for Parents

What can a young parent do when she has just given birth to a baby she feels she cannot care for, and she does not want to let anyone know of the birth? The “Safe Surrender” law lets such panicked parents safely and anonymously give up the baby without facing criminal charges for abandonment.

This law is needed because the risk of homicide is 10 times higher during the first day of life than any other time, according to State statistics. A UNC study estimated that 85 newborns were killed or left to die by a parent annually in the United States. The parents who felt desperate enough to try to kill their newborns had varied characteristics – all races, married and unmarried, various ages (the average age was 19), and one-fourth of them had even received prenatal medical care.

Texas was the first state to see the need for Safe Surrender in 1999. Now 46 states have these laws – Alaska, Hawaii, Nebraska and Vermont do not. The age for surrendering a baby varies by state from 72 hours to 30 days.

North Carolina’s law allows a parent (father or mother) to surrender an unharmed newborn up to 7 days old with any of the following persons, who are required to accept it:

  • Healthcare workers on duty at hospitals, health departments and non-profit clinics;
  • DSS workers who are on duty or at the Department; and
  • EMS workers who are on duty or at the station. The parent may leave the child with any other responsible adult, but that adult is not required to accept the child.

If a parent does this, she will not have broken any law, and can remain anonymous. There will be no criminal charges for abandonment. If there has been abuse or neglect prior to the surrender, however, the parent may face criminal charges for that. Only a parent can surrender the newborn, not a grandparent or any other person.

It is important that the surrender can be anonymous. The person receiving the baby may ask the parent for identity or medical history, but must tell the parent that this information is not required. A parent is encouraged to provide medical information which may help in caring for the baby.

The person receiving the baby should protect the baby’s physical health and well-being, and notify DSS or law enforcement. If the child is surrendered to a hospital or clinic, the medical personnel there will likely do a medical exam so they know if there are any current medical needs.

Social services will take custody of the surrendered baby. DSS will place the baby in a foster home or other temporary home. After 60 days, the baby will be available for adoption and parental rights will be terminated. If a parent changes his/her mind about the surrender within that 60 days, the baby can be returned to the parent, provided there are no safety issues or possible child abuse concerns.

Safe Surrender does not replace a parent deciding before birth to give a baby up for adoption. Safe Surrender is a last resort for parents who have not made that decision in time, but then find themselves in a desperate situation upon birth.

More information is available at the N.C. Health and Human Services website www.safesurrender.net. Informational brochures are available at www.ncbar.org or by calling my office.

Can my child choose with which parent she wants to live?

Q: My child is twelve now. I am separated from my spouse. Can my child choose with which parent she wants to live?

No. In North Carolina, there is no “magic age” at which a child can legally decide with which parent to live after the parents separate. Our courts are bound not by the child’s preferences, but by the child’s “best interest.” “Best interest” includes the child’s preference and happiness, but also factors such as stability at home, appropriate discipline and structure, nurturing, helping the child with schoolwork, and getting medical care. The N.C. Supreme Court has said that the child’s best interest is the “polar star” of child custody decisions, and guides how that decision will be made.

One reason there is no “magic age” for custody is that children mature at different rates. Depending on the child’s age and maturity, a judge may consider the child’s preferences by some means. For example, if the judge believes the child is sufficiently mature to talk to the judge about his or her preferences, a judge may do that. Some children may be mature enough at 11, and some wouldn’t be mature enough at 16 – so it depends on the individual child. Some children want to talk to the judge, while others want to stay out of their parents’ conflict. If a judge talks to a child about custody preferences, the judge usually prefers to do so “in chambers” in the judge’s office, rather than on the witness stand. The reason is that this is usually more comfortable for the child. Judges usually do not appreciate a lawyer insisting on calling a child as a witness and having the child actually testify from the witness stand, because this can be a frightening experience for the child.

Another way children (particularly younger children) may be able to have some input in the decision is in a report from a Guardian Ad Litem or other custody evaluator. This is an independent person, usually a lawyer or a mental health professional, appointed by the judge to do a custody evaluation or to advise the judge on particular issues. This evaluator talks to the child, the parents, and others with useful information. The evaluator reports his or her findings to the judge. That report may include what the child has said to the evaluator about time with each parent and preferences. Evaluators usually don’t put children on the spot by asking them to identify with which parent they would like to live. Some older children may volunteer that information. Younger children are often asked about what they do when they are with mom or dad, and about how things are in each household.

Although judges care about children’s happiness, children do not always have good reasons for their preferences. For example, if a child says she wants to live with mom because mom lets her do anything she wants, or says she wants to live with dad because dad promised to buy her a pony, the judge won’t be persuaded by that preference.

Judges can consider the child’s preference in making custody decisions. However, regardless of the child’s age, the judge makes the child’s overall “best interest” the “polar star” in the decision.

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