For most people going through a divorce, there are no issues that matter more than issues regarding your children. As a parent, you always want to do what’s best for your children. In some cases, for many reasons, that may mean seeking full custody.
Indeed, there are situations in which full custody is absolutely the best option for the children following a divorce. One spouse may be mentally unstable – or they may struggle with an addiction. Perhaps one spouse has committed a crime and cannot care for the children for some time. In other cases, a spouse has a significant other who may have traits or engage in behaviors that would endanger your children. In still other circumstances, a parent may be neglectful.
The question is – if full custody is warranted, how do you pursue it? That’s an understandable question to ask. Let’s take a closer look at the law together.
What Types of Custody Does North Carolina Allow?
In North Carolina, there are four primary terms to be familiar with when understanding child custody. These include:
- Legal Custody: Legal custody refers to the decision-making authority that the parents have regarding essential matters in the children’s lives. These may include issues about education, medical care, religious upbringing, extracurricular activities, and more.
- Physical Custody: Physical custody refers to the physical location where the children reside and spend their time.
- Joint Custody: Joint custody requires the parents to share the children’s physical and legal custody. Often, it is split evenly – although arrangements can vary, depending upon the circumstances and needs of the family.
- Sole Custody: Sole custody means that one parent alone has physical, legal, or both custody.
In many cases, where parents can get along, and the children are wanted by and can be cared for by each parent adequately, the parties will agree on some form of joint legal and physical custody. In cases where one parent cannot care for the children or does not want to care for the children for any reason, sole legal and physical custody may be the more appropriate option. Even when sole custody is ordered, it may also be accompanied by an order for visitation. This will allow the non-custodial parent to see the children, perhaps under supervision, if appropriate.
How is Custody Determined?
In North Carolina, as in other states, a couple generally has two options when resolving custody issues. They can decide the issues on their own, by agreement, or by submitting them to the court for a decision.
If a couple chooses to address custody in an agreement they draft outside of court, they can create almost any child custody arrangement that works best for their family. Regardless of whether a couple uses mediation, arbitration, collaborative law, or engages in lawyer-led settlement negotiations, they have the freedom and flexibility to draft an agreement that will ensure the outcomes that they feel are best. Not only does making this choice allow for great freedom and flexibility, but it also avoids the time, expense, and stress that would be incurred during contentious courtroom litigation.
Unfortunately, however, in many cases where one spouse is seeking full custody, the other spouse may not be in an appropriate mental state to communicate and cooperate effectively in an out-of-court setting. You may not be able to resolve. When this happens, a court must decide the issues for you.
What is the “Best Interest” Standard?
In North Carolina, a court will address custody issues using the “best interest” standard. In essence, this standard is precisely as it sounds. It means that a court will review all of the evidence and arguments presented regarding custody matters and attempt to make a decision that serves the overall “best interests” of the children involved.
To make this determination, courts will typically consider several factors, including things like:
- The mental stability of each parent
- Each parent’s living situation
- The ability of each parent to provide for the children
- The children’s relationship with each parent
- Anyone else who may be living with either parent
- Any employment or other commitments which may take significant time away from the children
- The overall ability of the parent to care for the child.
These are only a few of many factors, and ultimately, courts will have significant discretion in considering the evidence and making the decision that they feel is in the children’s interests. Once a court makes a decision, it is binding until and unless it is later modified by another court order.
If you feel that you should have full custody of your children, you will want to be sure that you present the most robust case possible to the court and that this would be in the children’s best interest. This may mean obtaining statements or testimony from other important figures in the child’s life – including teachers, coaches, relatives, and religious figures, to name only a few. It may mean gathering and presenting medical or school records or both. It could mean that the judge interviews the children themselves, depending on their age. It may even mean that one or both parents undergo a psychological evaluation in certain circumstances.
Understandably, these issues can seem complicated – and they can be. To be sure that you are fully asserting your rights and doing all you can to protect your children, consulting with an attorney who knows and understands the law will be essential. At The Law Office of Dustin McCrary, we’re here for you.
The Law Offices of Dustin McCrary – Here For You Each Step of the Way
Your children mean the world to you at The Law Office of Dustin McCrary. We also know that during a divorce, addressing child custody issues can seem overwhelming and intimidating. That’s why we’re here to help. You deserve to focus on your family and future during your divorce. You need to be able to spend quality time with your children and look after their well-being and your own. You don’t need legal stress or worry about how you’ll pursue and protect your rights.
Instead, you can leave those matters to us, knowing that you’re putting your case in good hands when you do. Wherever you are on this journey, we’ll meet you there and walk with you each step of the way. If you’re ready to get started, give us a call.
We look forward to helping you soon.