Listen to this Article
Until there is a settlement between the parents or the court determines custody, each parent has equal rights to physical possession of children of the marriage. In the absence of a written document establishing custody and visitation rights, the custody arrangements are subject to change on the whim of either parent.
North Carolina Courts and Custody
If the issue of custody goes to court, there are several principles you should keep in mind. First, the court uses the “best interests of the child” standard, which forces it to direct its attention to you and your spouse. Thus, the court will carefully look at your past conduct, and based on your history of conduct, the court will predict your future conduct. The judge is given broad discretion in his determinations.
Appellate review is very limited in custody cases because the courts of appeal are unwilling to substitute their own judgment of the facts for the trial judge’s, who initially ruled over the case. Second, your child may not be allowed to participate in the proceedings, even though his or her welfare is the focus of the case. This is so because the judge and the lawyers in the case may all agree that appearing in court might be unduly traumatic for your child, or your child may be too young or fragile to understand what might be asked of him or her.
Lastly, since the former state of an intact family will not continue because of the breakdown of family ties, rules regarding the burden of proof and other rules of evidence may be relaxed in a custody trial. Therefore, you might see the judge taking a more interrogative role than usual.
Laws on Child Custody
In North Carolina, the cases, statutes, and other laws, specifically Chapter 50A, govern child custody. The Uniform Child Custody Jurisdiction Act provides a guide for court action as it relates to child custody. Any parent, relative, or other person, agency, organization, or institution claiming custody of a minor child is allowed to bring an action in court. The usual ways a person claims custody before the court is either by: filing a complaint, counterclaim, or motion in the cause in a prior pending action.
Welfare of the Child
In North Carolina, the dominant principle in all child custody actions is that custody will be awarded to the person or entity who, in the judge’s opinion, will “best promote the interest and welfare of the child.” This language from the statute gives the judge an enormous range of discretion regarding the factors the judge considers that bear on the child’s best interests and as to the weight the judge give to each of the factors.
The court considers multiple and various factors. The judge can consider all those things that might impact the development of the child’s physical, mental, emotional, moral, and spiritual faculties. In considering the child’s developmental needs, the judge considers the age of the child. In North Carolina, the judge can consider the child’s preferences, but is never required to do so. The judge can consider each parent’s care-taking capabilities and the home environment that each parent could provide to the child. The judge can consider the time available to each parent to be with the child as well; the judge may wish to maximize the child’s time with a parent as opposed to a babysitter or daycare center. The judge can consider the child’s bonding with each parent and with other siblings, if there are any. But, keep in mind that the weight the judge gives to any of these factors is completely within her discretion.
A Parent’s Right to Custody
While a parent’s right to custody of her child is substantial, it is not absolute. No person or entity is allowed to interfere with a parent’s right to custody unless the child’s best interests demand it. Therefore, relatives and other third persons requesting custody have subordinate rights as to the natural parent of a child, unless the court makes a finding of unfitness.
Nevertheless, where the relationship between the child and a third party better promotes the child’s welfare than the relationship between the parent and child, a judge has discretion to award the non-parent custody. However, this only happens in a few limited situations. Most battles for custody are between the child’s biological parents, rather than between a parent and non-parent.
In North Carolina, there is no presumption that favors one parent over the other (i.e. mother favored over the father). North Carolina is one of many states that have abolished the maternal preference, favoring the mother of the child. The presumption assumes that the mother is the most apt and capable of caring for the child during his or her early years. This assumption was commonly known as the “tender years” doctrine. But, while the tender years doctrine is no longer in effect, all hope is not lost for mothers of young children in custody battles. In actuality, many North Carolina judges are inclined to favor the mother of young children, especially when the mother has been the primary caregiver of the children since the beginning.
Wishes of the Child
North Carolina case law has determined that the wishes of a child who is of “sufficient age to exercise discretion” are “entitled to considerable weight” in a custody case, but the child’s wishes are not controlling. Although other states hold to various ages at which the child’s testimony on this issue becomes relevant, in North Carolina the test is whether the child has sufficient mental capacity and comprehension to offer a reasoned opinion about where he or she wants to live. A child who is competent to testify on this issue may do so in open court. But it is often preferred that the child be interviewed in the judge’s chambers. Parties can stipulate to such an interview of the child by the judge, being held in chambers.
The Trial Court’s Discretion
District court custody matters are heard by a judge, not a jury. Since the judge observes the parties and witnesses firsthand, he is permitted to exercise extensive discretion in deciding custody. Thus, it is important to know the tendencies of a judge before a case as it relates to his/her awarding of custody. In some parts of North Carolina, parties can choose the judge they want to hear their child custody case. While other parts assign judges to cases, with little or no choice of the parties in the matter.
A trial court can award equal custody to both parties, or grant one party primary custody and the other visitation privileges. In actuality, North Carolina judges rarely award a 50/50 split of time that a child resides with each parent. The court’s motivation for this likely revolves around its belief that the parents will be unable to cooperate about anything regarding the child, since they are in court fighting over custody.
The type of custody agreement that requires the greatest level of cooperation between a child’s parents is joint custody. Therefore, the most common custody arrangement a judge orders is primary custody for one parent, with visitation for the other (secondary parent).
Visitation and Custody
The non-custodial, secondary parent’s time with the child is commonly referred to as visitation. In North Carolina, visitation is viewed as a lesser version of custody. Thus, the same principles apply to custody as to visitation in regard to the best interests of the child, parental rights, the child’s wishes, and the discretion of the trial judge. In North Carolina, a secondary parent is almost never denied visitation with a child.
Supervised Visitation
Although, if the judge is convinced that a child may be involved in some harm or danger if visitation is not monitored, the judge can order that visitation be supervised. Supervised visitation sometimes occurs in the visiting parent’s home. The supervisor might be another relative, a family friend or even a social worker. Supervised visitation could also take place in a more protected setting such as the offices of a physician or mental health professional. If visitation begins as supervised visitation, the order may provide for a phase-out of supervision once the suspect parent has proven himself to be more reliable or consistent around the child.
Visitation and Child Support
While many clients think they can tie child support payments to visitation privileges, it is important to understand that both visitation and support are independent of one another. Therefore, if one parent has not received the required amount of child support, he may not unilaterally decide to bar the other parent from exercising his/her visitation rights. There is no legal backing for depriving a parent entitled to visitation of such right because of a failure to pay support. In addition, such retaliation can potentially impair your child’s welfare.
Modifying Custody, Visitation and Child Support
A parent can bring claims or motions for child custody and visitation for the duration of a child’s minority (before age 18 in NC). The North Carolina child custody action can be brought either independently or it can be joined with an action for absolute divorce, divorce from bed and board, annulment, or alimony without divorce. For absolute divorce actions, the custody action may come before or follow the divorce action or it may take place during its pendency. If the action for custody is brought independently, the contesting parties must already be separated or there must be a pending claim that would lead a judge to remove one parent from the parties’ residence. Custody will not be decided if the family is remaining intact.
Although North Carolina courts retain jurisdiction over minor children at all times for custody and support purposes, you and your spouse may nevertheless contract otherwise with respect to custody. This possibility to avoid the court systems often allows for an amicable resolution of issues between separating spouses and helps the child to adapt to his or her new way of life by sparing them of the trauma of litigation. A properly drafted separation agreement would also provide you and your spouse with the flexibility to create your own modifications of the custody portions (or any other portions) of the agreement through further written amendment.
But, future modifications and changes to a previously established written custody arrangement may not be so easy. This depends on whether you and your spouse will agree over the subsequent modification. If parents cannot agree in the future to a change that one parent or the child wants, the court would become involved if the displeased parent sues. In such situations, where the parties had not gone to court but had settled custody by prior written agreement, the court will make its own initial determination of custody and visitation without requiring either party to show changed circumstances affecting the welfare of the child. The court’s initial determination would be based on the best interests of the child.
Within a separation agreement, the parties may agree to have the contract merged into a later divorce decree. If the agreement is merged, it becomes similar to a consent order and is modifiable and enforceable as a court order. Meaning that an incorporated agreement, unlike an unincorporated agreement, would be enforceable through contempt and it would also be modifiable without the parties’ consent based on one parent’s showing to the court a change of circumstances detrimentally affecting the child. However, there are some county judges in NC who regularly decline to integrate a separation agreement involving custody into a divorce decree when the only claim filed was solely for absolute divorce.
Although there is no custody order in place, all hope is not lost. As stated, in North Carolina an order awarding child custody maybe modified or vacated at any time a party files a motion and makes a showing of changed circumstances by the interested party. “Changed circumstances” are changes affecting the child’s welfare both positively and adversely. The changes must, moreover, be substantial for the prior order to be modified.
Burden of Proof in North Carolina Custody Cases
The burden of proof in custody cases is by the greater weight of the evidence, as in most civil cases. The evidence you use to support your custody claim must show how your behavior and abilities will further your child’s overall development and welfare better than your spouse’s behavior and parenting abilities would. Generally, the parent with the best care-taking history or care-taking potential will be the parent the judge will prefer, so long as that parent and the child have a satisfactory relationship. But, the judge will consider the common-sense factors detailed here to determine which placement of custody will be in the child’s best interest.
All parents should remember that it is never too late to become a good parent. Simply put, if you can change your negative behavior with respect to the child in positive ways or make additional efforts to better yourself, you should begin to implement those changes immediately. Also, things such as more extensive involvement with the child can help eliminate a history of infrequent closeness.
Recent contact is also important with regard to the witnesses you have testify on your behalf. Witnesses should be chosen on the basis of their own involvement with you and your child and their possible expertise on your child’s needs, as well as on the basis of the recency and frequency of their contacts with you and your child. Your best witnesses will be those who have seen you and your child a lot over the past year versus those who have not seen you and the child together recently or only see the child occasionally. You should consider a variety of people as possible witnesses: family members, social workers, daycare providers, psychologists or psychiatrists, teachers, extracurricular activity leaders, ministers, pediatricians, parents of playmates, and neighbors.
In close cases, it may be desirable to have a psychologist evaluate both parties and/or the child. If possible, it is best to have one professional do all of the evaluations to provide a uniform standard and level of continuity. This process is generally known as a “custody evaluation.” You and your spouse could agree to participate in a custody evaluation, if you believe it would help resolve your custody issue. However, if you can’t agree to participate in an evaluation, you can request the court to require an examination, and appoint its own psychologist to advise the court.
However, you should keep in mind the expenses associated with having a custody evaluation conducted. You should plan to carefully interview potential custody evaluators regarding their rates, if you are given a choice in selecting an evaluator.
Temporary Custody and Support Orders
The laws in North Carolina allow a court with proper jurisdiction to enter temporary orders that provide for the custody and support of children. Such orders may be entered in order to:
- Provide continuing stability in a deteriorating situation
- Preserve the status quo
- Prevent a child’s removal from the jurisdiction
- Return the child to an appropriate custodian
- Protect the child from harm, neglect or abuse
Emergency temporary orders may be entered ex parte upon a verified pleading or affidavit. “Ex parte” means that only one side tells the court its version of events, but the other side has not yet been given the opportunity to address the court.
Such an ex parte order does not fully satisfy the due process requirements of the U.S. and state Constitutions. Thus, the court must review a temporary emergency custody order within 10 days, at which time the other side has the opportunity to present his or her own evidence. After the court has heard the evidence from each side, the order will be continued (kept in force), modified or terminated (dissolved).
North Carolina’s Uniform Child Custody Jurisdiction and Enforcement Act requires that any party, any parent whose parental rights have not been terminated, and any person who has physical custody of the child must receive reasonable notice and opportunity to be heard before the court can make a non-emergency award of custody. Motions for custody in an already pending action may be made on 10 days’ notice to other parties. However, the full 10 days’ notice of the hearing to review an ex parte temporary custody order does not have to be given.
The Court’s Jurisdiction over Child Custody
The district court’s jurisdiction over custody continues from the time it obtains jurisdiction over a child, until (1) jurisdiction is terminated by the court; or (2) the minor reaches 18 or becomes otherwise emancipated. Once the court assumes jurisdiction over child custody, the parties may lose their freedom to contract with regard to custody issues. Thus, if the parties wish to reach an agreement, they may only do so through a consent order rather than a contract while litigation is pending. If they wished to put their agreement only into a contract, the litigation should be voluntarily dismissed.
Enforcement of Custody Orders
An order awarding custody is enforceable by civil contempt proceedings and disobedience to a court order can also be addressed in criminal contempt proceedings. Civil contempt can also be used as an enforcement measure during the pendency of the appeal of any order for custody.
Awarding Attorney’s Fees
North Carolina law allows, but does not require, the trial court to award reasonable attorney’s fees in a custody action. For a court to award attorney’s fees, it must find the interested party to be acting in good faith and to have insufficient means to pay the expenses of the suit. Such an award is not limited to the prevailing party.
Uniform Child Custody Jurisdiction and Enforcement Act
Like decrees as to future child support payments, custody decrees are always capable of being modified and thus do not meet the finality requirement for full faith and credit of the Constitution. North Carolina has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), to prevent parental kidnapping done in order to obtain a new custody decree in another state.
The UCCJEA works to provide uniformity for jurisdiction and enforcement rules. Every U.S. state has adopted a version of this Act. However, it is wise to compare the Act as adopted in another state, if it is relevant to your case, to determine if there are characteristic modifications of the Act by that particular legislature.
The UCCJEA provides four bases for jurisdiction over North Carolina child custody matters. North Carolina has jurisdiction if:
- It is the state the child lived for the six months immediately before the custody proceeding (i.e. the “home state”), or if the state had been the home state and the child is now absent because he or she has been removed by the person seeking custody;
- If it is in the child’s best interest because the child and one or both parents have a “significant connection” with the state and evidence relevant to the child’s present or future care, training, and relationships is available within the state;
- If the child is physically present in North Carolina and has been abandoned or an emergency situation exists;
- If no other state would have jurisdiction under the UCCJEA, or if another state has declined jurisdiction and it is in the child’s best interest for North Carolina to assume jurisdiction.
Limitations on the UCCJEA
Certain limits on jurisdiction also exist. The court must refuse jurisdiction if there was a pending custody action in another state when the petition was filed in North Carolina, so long as the other state’s exercise of jurisdiction conforms to the requirements of the UCCJEA. Declining jurisdiction is also appropriate if the petitioner-parent violated another state’s custody decree, unless the child’s best interests require that the North Carolina court take jurisdiction despite this violation.
The North Carolina court also has the discretion to refuse jurisdiction if the petitioner initially took the child from another state wrongfully or North Carolina is an inconvenient forum for the action. As for modifying an existing custody decree, a court with jurisdiction cannot modify the decree of another state unless the other state no longer has jurisdiction or has refused to exercise it.
The Parental Kidnapping Prevention Act
The Parental Kidnapping Prevention Act of 1980 adopted by Congress also establishes standards regarding appropriate exercise of jurisdiction over custody matters among the states. The standards are essentially the same as those outlined in the UCCJEA. However, under the PKPA, home state jurisdiction is vital. Under the Supremacy Clause in Article VI of the U.S. Constitution, when there is a conflict between the PKPA and a state’s UCCJEA, the PKPA as federal law overrides the UCCJEA.