Of all the issues that couples find themselves facing during a divorce, child custody is often the most emotional, and to the majority of couples, the most important. This is entirely understandable – after all, there is nothing more valuable or cherished in life than the people we love. As a result, more than any other issue, couples who are divorcing what to understand what is involved in making a child custody determination.

We commonly receive questions about different types of custody arrangements, how judges handle child custody cases in the courtroom, what might prevent you from getting custody of your children, and various visitation options. While the information provided here is certainly no substitute for personally consulting with your attorney regarding your own unique circumstances, it is our hope that it will be helpful, as you consider what child custody arrangements might best suit your family.

Types of Custody

There can be a wide variety of custody arrangements, which, of course will vary depending upon the unique circumstances and needs of each family.   It is important to understand the various factors that courts use in making custody decisions, even if you ultimately end up entering into an agreement with your spouse prior to the matter ever reaching a courtroom.  This is because regardless of whether a court makes the decision, many of the factors that it considers can be helpful for you to consider as well in creating an agreement that fits your family’s needs.

What Are the Different Types of Custody?

Before you can thoroughly think through what might be the best custody arrangement for your family, it can be helpful to have an understanding of the two primary components of custody – physical, and legal custody. Physical custody is the term that refers to where the children will actually, physically reside, while legal custody is a term which refers to who will make the decisions affecting the important aspects of the children’s lives. These may, for example, be decisions about things like education, religious upbringing, involvement in extracurricular activities, medical care, and other important decisions.

Parents may share physical and legal custody in any number of ways. Some of the most common custody arrangements include:

  • Joint Legal Custody: Depending upon the circumstances of the couple, it might make the most sense in some instances for a custody agreement to specify a “primary residence” for the children, which essentially means that the parent who lives in that home will have “primary physical custody” of the children – that is, they reside there physically for the majority of the time. Even when this is the case, however, the parents can still share joint legal custody of the children – that is, they equally share in the decision-making process regarding their children. In this situation, a couple should also designate specific parenting time during which the parent that does not have primary physical custody gets to have the children at his or her residence as well.

Any agreement or court order should ultimately set forth which parent will have the children on what days of the week, on holidays, school breaks, and during the summer, for example.  An arrangement like this may be a good fit for your family if:

    • The parents are able to communicate in a respectful and effective way;
    • Both parents have a desire to continue to co-parent together and are committed to doing so;
    • Both parents remain actively involved in the lives of their children;
    • Both parents have similar parenting values and ideals;
    • Both parents are willing to be open to the ideas of the other in determining what might be best for their children.
  • Joint Physical Custody: In this type of custody arrangement, the children have two primary addresses, and move between them according to a schedule decided by the parents. Generally, the parents try to ensure that the children spend roughly the same amount of time at each residence. The parents might exchange the children every other week, or every other month, depending upon what is best for their family. In these situations, the parties almost always share joint legal custody as well.
  • Sole Custody: In a sole custody arrangement, only one parent is granted custody of the child, from both a physical and a legal standpoint. This means that the parent who has sole custody is responsible for all of the decisions with respect to the child, and the child resides with that parent all of the time. Typically, sole custody without any sort of regular visitation is a rarity today. It usually only occurs when one of the parents has either committed a crime against the child (sexual or physical abuse, for example) or is a drug addict, alcoholic, or has some other debilitating issue that causes an inability to successfully parent the children. Even in these cases, depending on the circumstances, a court may order “supervised visitation,” which is overseen by a court-appointed worker or other designated individual.

Although these are the broad categories of custody arrangements, couples today are fortunate in having the leeway to truly determine almost any custody arrangement that might be best for their family’s lifestyle and circumstances. In fact, the majority of parents do decide to agree upon their custody arrangement together, in a separation or parenting agreement, rather than leaving it to the court. In fact, it is growing increasingly rare to see the traditional “custody battle” that many people imagine when they think of divorce proceedings.

What to Consider When Drafting a Parenting Agreement

One of the many benefits of creating a parenting plan is that the parties are free to choose any arrangement that best suits their needs.  After all, it is the parents who know their children best, and have a true understanding of what would be the best custody arrangement for them. This is not to mention the fact that as your children grow and develop, a timesharing arrangement that may once have been a good fit might no longer be.  When you draft your own parenting plan, you and your spouse can change the plan to suit the changing needs of your children.  This is not true with a custody order, which the court itself must change after a request for modification. 

When parents come to an agreement with respect to the custody of their children, the court will typically honor that agreement.  If the agreement is in the best interests of the children and the parents willingly agreed to the terms, a court will rarely overrule the parent’s wishes and will usually implement the agreement as submitted.

With that in mind, some things to consider when creating a parenting plan together include:

  • Determine who will be the primary physical custodian: Unless the parties intend to split parenting time almost completely evenly between their two homes, one parent will be named the primary physical custodian.  This does not mean that the parties cannot share joint legal custody – it only means that the home of the primary physical custodian is where the children will reside for the majority of the time.
  • Set forth a detailed parenting schedule: Be very specific and detailed about the schedule that you and your spouse wish to implement. Be sure to consider not only normal days and weekends, but also things like major holidays, birthdays, school breaks, vacations, and other important events when you determine who will have the children at which times. 
  • Include transportation and exchange location information if necessary: If one parent will be responsible for picking the children up at school, or at extracurricular activities on a regular schedule, or at specific times, it can be helpful to include those details, as well as to specify a meeting place as to where child exchanges will occur, if necessary.
  • Address child support: Without question, child support can be one of the most contentious and difficult aspects to address in a parenting plan – but it is also one of the most important.  It is often the case that the non-custodial parent pays a pre-determined amount of money to the other parent each month to help provide for the needs of the children. Certainly, this amount will be depend upon the income and expenses of the parties, as well as the needs and best interest of the children. If a couple is able to agree upon a child support amount and payment schedule that fits their needs, including it in the agreement is a wise choice. This not only makes the expectations clear, but it also allows the parties the flexibility to modify the arrangement in the future as their needs change.
  • Address medical and other necessary care for the children: All children will have ongoing medical and dental needs. Some children may have need for therapists, medical specialists, tutoring, or care from any number of other professionals. Agree upon on who will cover the cost of medical and dental insurance, as well as fees for other care that the children may need. It can also be helpful to address who will attend the appointments, how you will cooperate in selecting doctors, and how you will make decisions about important health issues.
  • Consider providing for regularly scheduled meeting times to evaluate the success of the parenting plan: Many co-parents find it helpful to check in with one another at regularly scheduled times to evaluate how the parenting plan is working for the children and for the parents.  One of the best things about a parenting plan which the parties draft and agree to on their own is that they have the flexibility to make changes to that plan as their circumstances and the needs of their children change. Including regularly scheduled meetings as part of your parenting plan can help you to ensure that you make these meetings a priority for your family.

Although the majority of couples do tend to enter into parenting agreements in which they determine custody arrangements for themselves, it can nevertheless be helpful to further explain how traditional courtroom custody decisions are made as well, for families who choose to pursue that route.

Courtroom Custody Determinations

Although entering into a parent agreement is the ideal choice for many families, sometimes, for any number of reasons, and regardless of best efforts and good intentions by the parties, an agreement simply cannot be reached. Sometimes this may unfortunately be the result of a power imbalance created by one spouse being abusive toward the other, while in other cases, the parties may be too far apart in their ideals and goals, or feel too emotionally unsettled to work together cooperatively. Whatever the reason, sometimes, it is best for a court to make the decision as to the custody arrangement between the parties.

If you ultimately decide that requesting a custody determination by the court is the best and only option, your spouse will need to be served with a copy of the suit, and will typically have 30 days to file an answer.  Depending on your particular situation, your attorney may file a motion for temporary custody or a motion for a temporary parenting arrangement, which are motions that can help to determine where you child will live while you are waiting for your matter to go to trial.  Each county has different rules as to how it schedules and hears these particular motions, so it is always wise to seek the help of an attorney who is familiar with the rules and procedures in your particular location.

Prior to making a custody determination, North Carolina courts will require the parties to go to mediation to attempt to work out their custody disagreement prior to the case going to trial.  Parenting classes may be ordered as well. If mediation isn’t successful in helping to resolve the issue, the court will ultimately make the decision.

When making a custody determination, North Carolina law requires the court to consider what is in the “best interests” of the child.   Generally, the court will good deal of latitude and discretion in making a decision on custody, and ideally, will try to make a decision that is fair to both parents and in the best interest of the children involved.  To determine what is in the best interest of the children, some of the things that the court might consider include:

  • Issues of morality, including conduct in the past, to help determine how you might behave in the future;
  • The wishes of the children.  Though North Carolina law does not specify a particular age as to when the children’s opinions will be considered, the child must be mature enough to think rationally and form opinions;
  • Spiritual well-being (though this not specifically about religion, testimony about religion is allowed and often considered);
  • The parenting plan that each parent wants;
  • The home environment that each parent could provide to the child;
  • The day-to-day routines and lifestyle of the children up to this point;
  • Whether or not domestic violence has occurred at the hands of either parent or in either home;
  • Any history of drug or alcohol abuse by either parent;
  • The capacity of each parent as a caretaker, including what kind of home environment they provide for the child;
  • The time that each parent is capable of devoting to the child.

To make this determination, the court will carefully examine the conduct of both parents and any pertinent family history.  Depending upon the age of your child(ren), the court may choose to interview them privately in chambers, in order to better understand the family dynamics and the child-parent relationship. 

In some situations, if making a determination is particularly difficult for any number of reasons, an outside custody evaluator may be utilized to assist the court in the decision-making process. These experts may interview the family, teachers, coaches, babysitters, and other important people in the child’s life, in addition to reviewing other pertinent evidence.

Depending upon the circumstances of the case, the court might also appoint a guardian ad litem to represent your child’s interests.  This is an individual, typically an attorney, who is directed by the court to investigate the issue of custody, and present testimony as to their findings. Often, a court will only appoint a guardian ad litem if they believe that there is some danger facing the children involved and that they need their own representation. It is nevertheless good to be aware that this is an option that the court has and can exercise in any custody matter.

In addition to experts or officials that might be appointed by the court to investigate custody matters, parents are also free to bring in their own witnesses to speak on their behalf during a custody hearing.  These witnesses might include:

  • Family members;
  • Friends;
  • Parents of your children’s friends;
  • Coaches;
  • Teachers;
  • Child-care providers;
  • Health care providers;
  • Religious teachers;
  • Therapists;
  • And anyone else you believe might have beneficial testimony to present on your behalf.

After hearing all of the evidence put forth by the parties, the court will ultimately enter a custody order, which will set forth its findings and directions as to the custody arrangement that it believes is in the best interests of the children involved.  Once a court has entered a custody order, that order is binding on the parties, and they are legally required to follow its directives until such time as it is later modified. 

One important thing to realize about a court order of this nature is that if an order is issued by the court, the court must also make any later modifications to that order. Seeking a modification of custody will require proving a substantial change in circumstances that affects the child’s best interest.   This is often a very high burden of proof.  For this reason, among many others, determining the support amount that best fits your family’s needs as a part of your divorce agreement is often the best choice for everyone involved if it is possible.  It is a choice that will reduce stress, allow you to tailor your custody arrangement to fit your circumstances, and allow you to avoid the necessity of returning to court later to relitigate these issues.

Call the Law Office of Dustin McCrary Today

Without question, child custody is going to be one of the most important issues that you have to address during the divorce process. It is understandably one that you do not want to address without the assistance of a qualified and experienced attorney – one who understands the law, and can pursue the best strategies on your behalf to help you ultimately achieve the custody arrangement that you believe is best for your family.  At The Law Office of Dustin McCrary, helping families make it through the divorce process smoothly and successfully is our passion. We understand how much you love your children, and we are committed to working with you to obtain the best outcome on their behalf.

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