Child Custody: Filing, Modifying and Visitation Rights

This guide may assist in answering questions you may have regarding Child Custody and Visitation.  We encourage you to ask other questions, as it is impossible to answer all of your questions in this guide.

Filing for Custody in North Carolina

How do I file for child custody in North Carolina? 

If you and your spouse are unable to agree on custody issues, you may file a lawsuit seeking child custody or visitation rights. 

  1. Isn’t custody settled when I obtain my divorce?  Not necessarily.  Divorce decrees do not always settle matters of custody.  A custody order may be entered before or after a final decree of divorce in North Carolina
  2. Will my Separation Agreement protect me from the other parent taking my child?  No.  Separation Agreements are a contract between you and the other parent.  It is not enforceable in the way that a court order is unless it is incorporated into an order of the court.

What happens once I file a lawsuit for custody and/or visitation?

Wake County requires both parties to attend mandatory child custody mediation.  You will first have an orientation with other parents.  Following orientation, you and the other parent will have the opportunity to meet with a neutral mediator to attempt resolution of issues and reach a parenting agreement.   If, during mediation, you are able to reach an agreement, the mediator will draft a legal agreement that becomes a court order signed by both parents and the judge. 

What happens if mediation fails? 

If you are unable to reach an agreement during mediation, both parties will need to attend parenting classes.  A hearing to determine custody will also be set.

Where do I file my lawsuit for custody? 

Usually custody is filed where the child(ren) is presently residing.  You may file an action involving custody of your child(ren) in the “home state” of the child (where the child has lived for the last six (6) months) or in any state where the child and one parent have substantial and significant contacts and connections. 

What if we agree on custody issues? 

Even if both parties agree on such issues as custody and visitation, agreements regarding your child(ren) should be formalized to avoid future disputes.  As your attorney, we can address custody and visitation issues as part of a Separation and Property Settlement Agreement or help you obtain a court order. 

  1. What is the benefit of having my attorney help me obtain a court order for custody and/or visitation?  A court order is easier to enforce and more difficult to modify than a contract for custody. 

Also, in the absence of a court order or other agreement, parents are joint guardians of their child(ren) with equal rights to custody and control. 

What Does Custody Mean

What is the difference between “legal custody” and “physical custody”? 

“Physical Custody” means that your child(ren) lives primarily at your residence.  “Legal Custody” gives a parent the right to make certain decisions regarding his/her child(ren) – medical, educational, and religious decisions, for example. 

What is “Joint Custody”?  

The North Carolina General Statutes do not define “joint custody.”  However, custody is often defined in one of two ways:

  1. Joint Legal Custody: Parents share in making all major decisions affecting the child(ren).  These decisions may include matters of your child(ren)’s health, education, medical, or religion.  It does not mean that parents will jointly make day-to-day decisions.  It also does not mean that your child(ren) will spend equal amounts of time with each parent.
  2. Joint Physical Custody: If joint physical custody is awarded, your child(ren) will spend an equal amount of time with each parent. 

What are the effects of joint legal custody? 

Because you as parents will share in making all the major decisions affecting your child(ren), both parents will be required to discuss the child(ren)’s needs more frequently than would occur in a sole custody arrangement. 

Are there any benefits to joint physical custody? 

A joint physical custody arrangement can be beneficial in that both parents will have the opportunity to spend time and develop a relationship with the child(ren).  As opposed to a sole-custody arrangement where one parent may only get to spend every other weekend with a child, in a joint physical custody arrangement, each parent has ample time to form a bond with his/her child(ren). 

Are there any disadvantages to joint physical custody? 

One disadvantage in a joint physical custody arrangement can be that of consistency.   Often times, rules differ at each house, the way homework is completed may differ, and keeping up with friends at different houses may also be difficult.  Joint physical custody also requires some amount of shifting between homes, which could result in a child not feeling a sense of “home.”  Joint custody also requires both parents to be willing to work together and be committed to such an arrangement. 

Is there a time when joint physical custody is not advisable? 

Because of the level of commitment required and the need for conflict-free interaction for the child(ren) involved, joint physical custody is not advisable in situations where there is a history of domestic violence, drug or alcohol abuse, child abuse and neglect, of where a parent suffers from mental health issues.  Because the cooperation required between parents, joint physical custody is also not advisable where history demonstrates that parents are unable to agree on issues concerning the child or simply cannot interact without hostility.  Joint physical custody is also not advisable where it is evident that the child(ren) involved does not have a temperament that will allow him/her to cope with and easily adapt to change.

Determining Who Gets Custody

How does the court decide which parent gets custody? 

The standard for determining custody is what is in the best interest of the child(ren).  The court considers many factors when determining what is the in the best interest of the child(ren). 

In determining custody, is there a preference toward the mother or father? 

No.  There is no preference toward the mother or father in determining custody.  The courts will look closely at which parent will best promote the welfare and interests of the child(ren). 

What factors do courts consider in granting custody? 

In most circumstances, courts look at who has primarily taken care of the child(ren) during the marriage (bathing, feeding, clothing, assisting with school, etc.), approaches to discipline, who has cared for the child during the period of separation, work schedules, how each parent can provide for the physical, emotional, educational, religious and social needs of the child(ren), and the character and disposition of each parent. 

Can my child(ren) testify as to where he/she wants to live?

Yes.  There is no minimum age for when a child may testify as to his/her preferences.  Your child(ren)’s preference as to either you or the other parent is an important factor to be weighed.  However, the child’s preference is not conclusive.  It is important to remember that not every child will be allowed to testify as to his/her preference.  Whether the child is old enough and capable to testify is a matter determined by the trial judge.  The trial judge will make this determination by deciding whether the child is “of sufficient age, discretion, and maturity” to express a sound and rational opinion as to custody. 

Can the court grant joint custody? 

If you and the other parent cannot reach a decision concerning joint custody, you must ask the court to award joint custody.  First, you should decide whether you want joint legal or physical custody. 

  1. What must I demonstrate to the court to be awarded joint physical custody? You must show workable schedule and that such an arrangement will be the least disruptive for the child(ren).  You must also demonstrate that you have the time, room and ability to care for the child(ren).
  2. What else must I demonstrate to the court for joint physical or legal custody?  You will need to prove that you have always been significantly involved with your child(ren)’s upbringing, and that you have previously assisted in caring for and making decisions for your child(ren).  It is also helpful to show that both parents are able to cooperate and communicate with one another.  And, finally, all evidence you present for an award of joint custody should indicate that joint custody is in the best interest of the child

What if I do not want joint custody by the other parent does? 

If the decision is left to the judge (in cases where you and the other parent cannot reach an agreement), then you must demonstrate that you and the other parent are not good candidates for joint custody and that joint custody is not in the best interest of the child(ren). Demonstrating that you and the other parent have been unable to communicate without hostility in the past, that you rarely agreed on issues concerning the child(ren), or that the other parent has had little involvement in the child(ren)’s life will assist you in defeating the other parent’s desire for an award of joint custody.

Enforcing and Modifying Custody Orders

Can custody orders be modified? 

Yes.  Custody Orders are never “permanent.”  Once a custody order is in place, a judge can change it.  However, the judge can only modify a custody order if there is a substantial change in circumstances since the entry of the prior order.  Usually it must be shown that the change that has occurred has a direct and adverse effect on the child. 

Can court orders for custody from another state be registered in North Carolina for enforcement purposes? 

Yes.  You may file and register another state’s decree with the Clerk of Superior Court in the county in which either you or the other parent resides. 

What happens if the other parent files for custody in another state because he/she does not like the present custody order? 

The Uniform Child Custody Jurisdiction Act dictates what occurs in situations such as this.  Under this Act, courts handling custody cases must always inquire into whether your child(ren) have been the subject of a prior custody case in any other state.  If a judge should find that another court has already ruled on custody, the judge should refuse to make a ruling and refer the petitioning parent to the court that originally entered the custody order.  If the original court no longer has jurisdiction and has released or transferred jurisdiction to the new state court may that court assume jurisdiction and make a ruling as to custody. 

Matters of Child Visitation

How does visitation work? 

Visitation schedules vary depending on the circumstances involved.  Every case is different and a schedule that is in the best interests of the child(ren) of one family may not be in the best interests of the child(ren) in your family.  Visitation can be highly structured, with certain days and times set out specifically, or it can be flexible and unstructured, assuming the parties are able to get along and agree as to times and terms. 

If the other parent is awarded custody, will I be given visitation rights? 

In most circumstances, the non-custodial parent is entitled to reasonable visitation.  In situations where it has been determined that the non-custodial parent has a history of abuse or neglect, visitation rights may not be granted.

 Other Issues Relating to Custody

 Can I terminate the parental rights of the other parent? 

Certain circumstances may exist where the rights of a parent can be terminated.  In situations such as these, you must provide evidence of substantial neglect or abandonment. A child custody and abandonment lawyer can help with this.   Once a parent’s rights are terminated, future child support obligations of that parent are also terminated. 

 Are nonparents capable of obtaining custody of a child instead of a natural parent? 

A natural parent is preferred.  A natural parent who is of good character and is a fit and proper person to have custody is usually entitled to custody above all other persons.  However, the overall consideration is what is in the best interest of the child(ren) so nonparents may be able to obtain custody. 

 What effect does a joint custody arrangement have on child support? 

It will result in a different amount of child support than in a sole custody arrangement.  For child support purposes, joint custody is defined as a parent’s visiting with the child(ren) for 123 or more overnights a year.  The increased overnights will be figured into the calculation and the parent will receive a “credit” for that time.  This “credit” is given based on the theory that while the child(ren) is with the parent, that parent must provide substantial support; therefore, the other parent is saved the expense of the child(ren) during his/her time with the other parent. 

From the Author: North Carolina Child Custody Law Firm

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