Child Custody FAQ

If a natural parent is fit for custody, they are entitled to the custody and care of their child unless that decision is not in the best interest of the child. Where the relationship between the child and a non-parent is better for the welfare of the child, a judge may award custody to the non-parent.

In North Carolina, it is possible to receive a temporary order for the custody and support of a child. Temporary custody orders can be granted 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; and/or to protect the child from harm, neglect or abuse.

Emergency temporary orders may be entered with only one party present in court, or “ex parte.” Ex parte means that only one side tells the court its version of events while the other party is unavailable to address the court. Because an ex parte hearing can violate the due process rights of an absent party, the court must review a temporary emergency custody order within 10 days, giving the other side 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).

You cannot revoke visitation from a spouse that doesn’t pay child support. Child support and visitation are two legally independent components. For example, if one party has not received the appropriate child support payment, he or she may not decide on his or her own to bar the other parent from any visitation rights. There is no supporting legal foundation for such a move. In addition, such retaliation can have a negative impact on your child.

Natural parents are typically favored over non-parents in awarding custody of a child, but when a custody fight is between both biological parents, there is no presumption of favor for either the mother or father. In the past, courts have favored the mother in a custody dispute with the rational that the mother would be more capable of caring for a young child. This belief was known as the tender years doctrine. While this doctrine has been abolished, North Carolina judges are still more likely to favor the mother when awarding custody of a young child.

In North Carolina, a child of sufficient age is allowed to express their wishes in a custody case; however, the child’s wishes will not be controlling. In determining whether the child is of “sufficient age,” N.C. weighs whether the child has developed the ability to offer a reasoned opinion about where he or she wants to live. While this testimony of a child can be heard in open court, it is often preferable for the interview to be conducted in chambers. An interview between the child and the judge in chambers can be arranged through mutual agreement between the parties.

A judge is not required to agree with a child’s choice of custody. In practice, as the child gets older and especially when the child is a mid-teenager, the judge may place more weight on the child’s own desires, but even then, a child’s choice will not be the determining factor for a judge. The determining factor will remain the best interests of the child.

Sharing joint custody of your child will not prevent you from having to pay child support. Even if both parents share custody equally, one parent will inevitably have to pay child support. Usually, the only way to avoid being required to pay child support is if both parents earn exactly the same income and spend the same amount of time with the children. In North Carolina, the child support guidelines calculate the obligation to pay based on time spent with each parent and the income of each parent. So even if the child spends equal time with each parent, the parent with the higher income will owe child support.

The court will bring to light your parenting skills and daily interactions with your child to determine a custody dispute. Individuals who have close contact with you and your child may be called as witnesses. Also, visuals such as video and photographs of your child’s surroundings, potential neighborhood, and living space while in your custody will be helpful evidence to present to the court. Visuals will help engage the judge and give him or her a greater insight into your side of the custody case. It is imperative to continue being the best parent possible for your child to aid in the potential evidence given during your case.

You and your spouse have the power to set the parameters of your custody agreement, but if you are unable to reach an agreement, a judge can set forth the agreement for you. Judges consider a variety of factors in determining which parent is entitled to custody, including: the age of the child, the time each parent has available to spend with the child, the stability of the parents, efforts by either parent to undermine the other parent, abductions, moves out of state, facilitation of visitation and involvement of the other parent, child abuse and neglect, drug and alcohol problems, religion, non-marital sexual relationships and the preferences of the children. In almost all cases, visitation rights will be granted to parents who aren’t awarded custody. While the natural parents are typically awarded custody, grandparents can also seek custody in situations that warrant such an arrangement.

North Carolina laws allow for you to receive an award for reasonable attorney’s fees if the interested party is found to be acting in good faith and to be unable to cover the cost of the suit. Having to enforce a custody order by means of civil or criminal contempt proceedings will not prevent you from receiving attorney’s fees. Contempt proceedings simply are a remedy for disobedience to a court order.

If you have custody of your child, the non-custodial parent will be ordered to pay child support. The paying spouse will be ordered to pay a percentage of his or her gross monthly income. North Carolina has specific guidelines that govern child support payments, but the court has the ability to deviate from these guidelines.

In preparing yourself to go to court to determine custody, having witnesses available to testify to how you interact with your child and your child’s home life will be beneficial. Potential witnesses include teachers, pediatricians, childcare workers, neighbors, family members, etc. Witnesses who have discussed your child with you and have observed your child for long periods of time will be most helpful in court.

Witnesses who have discussed your child with you and have observed your child for long periods of time will be most helpful in court. Also, it is important that your witnesses have interacted with you and your child recently, preferably in the last three years. Potential witnesses include teachers, pediatricians, childcare workers, neighbors, family members, ministers, etc.

It is important to modify your past behavior and begin practicing positive parenting habits with your child immediately. Your more recent and positive involvement with your child can help overshadow less desirable behavior you’ve displayed in the past. In a custody dispute, it is never too late to become a good parent.

A custody evaluator is an impartial party whose purpose is to interview the parents together and individually as well as observe how each parent interacts with the child. The evaluator may also observe the child’s home life and living conditions proposed by each parent. In addition, the evaluator may administer a few standard psychological tests. It’s important that the custody evaluator is a disinterested third party that hasn’t treated any member of your family in the past. While you have the right to hire your own expert mental health professional, a judge may perceive testimony from your expert as biased and disregard their testimony. Before making the decision to hire your own expert, it is best to consult with an attorney to make sure the decision is actually beneficial to you.

During a custody evaluation, a mental health professional (or a custody evaluator) is hired to assist in determining what custody options would be in the best interest of your child. A custody evaluator is an impartial party whose purpose is to interview the parents together and individually as well as observe how each parent interacts with the child. The evaluator may also observe the child’s home life and living conditions proposed by each parent. In addition, the evaluator may administer a few standard psychological tests. It’s important that the custody evaluator is a disinterested third party that hasn’t treated any member of your family in the past to avoid bias.

You and your spouse will have the opportunity to agree to a custody evaluation if you believe it is in the best interest of the child, or a custody evaluation can be court ordered. Note that there are fees associated with having a custody evaluation done, and you should inquire about fee schedules with various mental health providers prior to making the decision to have an evaluation.

The Parental Kidnapping Prevention Act was established in 1980 to create standards regarding the exercise of jurisdiction over custody matters. These standards are similar to those made by The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), but under PKPA the home state jurisdiction will override other jurisdictional claims. Also, PKPA, which is federal law, will override UCCJEA.

A judge will base an award for custody on which person or institution will best promote the interest and welfare of the child. This standard gives the judge the discretion to weigh factors that the judge feels have the most bearing on the interest of the child.

Visitation is a lesser version of custody awarded to a non-custodial parent. The same standard that applies to custody disputes applies to visitation rights. A trial judge will look to what best suits the interest of the child. Often, in North Carolina cases, non-custodial parents are awarded alternate weekends, overnight visitation, some major holidays, and other special days such as Mother’s Day, Father’s Day, and birthdays. Keep in mind that some judges in North Carolina are of the belief that younger children benefit from remaining in one setting most of the time, and for that reason, visitation with the non-custodial parent could be limited.

The Uniform Child Custody Jurisdiction and Enforcement Act was created to prevent parental kidnapping in an effort to obtain custody in different states in lieu of a custody decree ordered in another state. This Act standardizes jurisdiction and enforcement rules, and every state (including North Carolina) has adopted a version of this Act. There are four criteria created by the act to determine jurisdiction. A state has jurisdiction:

• If it is the state in which the child lived for the six months immediately prior to 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 individual seeking custody; or
• 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, and a court of another state does not have jurisdiction; or
• If the child is physically present in North Carolina and has been abandoned or an emergency situation exists; or
• 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.

In addition, a court must deny jurisdiction if there is a pending custody action in another state that has met these four requirements listed above. Jurisdiction can also be denied if a parent is attempting to violate or avoid a custody decree from another state. Lastly, a court with jurisdiction cannot modify a decree ordered by another state.

In addition to establishing jurisdiction, the Act also provides a notice requirement to custody actions. The Act requires that any parent or party to a custody action 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. Note that full notice does not have to be given for an ex parte temporary order.

If your custody issue goes to court, the focus will become you and your spouse as a means to determine  the custody agreement. Therefore, the court will examine your conduct in the past. Based on your history, the court will predict how you will behave in the future. The judge will render a custody decision based on the “best interests” of the child. There are many, many factors considered by judges in determining the best interests of a child, most of which are straightforward. The judge can consider anything that might have a negative impact on the development of the child mentally, physically, and morally.

In considering the child’s developmental needs, the judge will take into account: a child’s age; the mental and physical wellbeing (or lack of it) of each parent; each parent’s ability to take care of the child; the home environment that each parent could provide to the child; the role each parent currently has in taking care of the child; the child’s relationship to each parent; the time available to each parent to be with the child; the environment that the parent can create for the child; the presence of siblings in the family and the siblings’ relationship to each parent and to each other; prior bad acts of either parent (for instance, abuse and neglect); parental drug or alcohol problems; religious factors; the willingness of each parent to keep the other parent involved in the child’s life and to facilitate the other parent’s access to the child; and each parent’s adult relationships, including non-marital sexual relations. But remember that the weight the judge gives to any of these factors is completely within the judge’s discretion.

Any parent, relative, or other person, agency, organization, or institution claiming custody of a minor child may bring an action in court. Filing a complaint, counterclaim, or motion in the cause in an already pending matter are the usual methods for putting custody before the court.

Your dating life could cause your settlement agreement to unravel if your spouse feels threatened by the possibility of another “parent” figure in your child’s life. Many spouses often react to such a threat by insisting that a new girlfriend or boyfriend be completely isolated from the child. Also, custody plans and agreements that were once agreed on could soon fall apart because of a new dating partner. In addition, your spouse could try to use your dating life as a weapon to gain custody of your child.

This theory of a new dating partner as a means to gain custody of a child has been rejected in North Carolina appellate court based on certain facts; however, if your spouse could show that your dating has become a distraction in your life and has subsequently caused neglect or inattention to your child, your position in a custody dispute could be greatly weakened.

Often, terminology gets in the way of an otherwise friendly custody agreement. Phrases such as “sole custody” and “joint custody” are terms that parents fight to include, but in actuality, lack legal importance. These terms typically refer to a parent’s rights to make decisions regarding the child, with “sole custody” indicating that the parent with possession has most or all of the decision-making authority and with “joint custody” tending to indicate that each parent will have some decision-making input.

The the terms “joint” and “sole” can lack legal importance because they can only mean whatever the written custody document says they mean. You need to keep this in mind as you draft your agreement. You also need to keep this in mind when you start to find yourself in a fight over terminology. “Sole custody” and “joint custody” have no special meaning in North Carolina except the meaning you give them in an agreement or the meaning a judge gives these terms in a court order. In other words, it all depends on what else the document says, if anything.

While a grandparent does not have standing to seek visitation when children are living in an intact family without issues of divorce or separation, grandparents do have standing to seek custody or visitation with a minor child who is living in a home torn by separation or divorce. A North Carolina court will balance the concepts of “parental rights” and the “best interest of the child” to resolve visitation disputes. In balancing these doctrines, the court must look to several factors, including: the child’s interest in maintaining a connection with a “psychological parent” who may be more important in the child’s life than a biological parent, the rights (if any) of the grandparents, and the rights of the parents.

In determining whether a grandparent has standing to seek visitation in North Carolina, the courts rely on specific statutory provisions. The law defines a grandparent as the biological grandparent of the child, except when the child has been adopted. If a child has been adopted, then the child “joins the bloodline” of the adoptive family, and the adoptive grandparents have standing. Step-grandparents do not have standing when familial ties have been severed by death or divorce of the actual stepparent. In the case of adoption, if a stepparent or blood relative has adopted the child, and the biological grandparents have a substantial relationship with the child, then the biological grandparents retain standing. However, if the adoptive parents have no blood relation to the child, and the parental rights of the biological parents have been terminated by the adoption, the biological grandparents will lose their standing to seek visitation. These statutory provisions also state that a grandparent can obtain standing and seek custody or visitation where “[a]ny parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child” is unfit, has died, or has engaged in conduct inconsistent with the parent’s parental status.

Third party custody and visitation can be complicated to dispute; therefore, it is best to seek advice from your attorney concerning the matter. Also, you can take a look at the following North Carolina cases to gain insight on how the court has determined visitation in cases involving grandparents and other third parties: Troxel v. Granville, Hill v. Newman, Peterson v. Rogers.

Supervised visitation is an alternative frequently used to ensure that both parents enjoy some form of custody with their child. It is rare that a North Carolina court would deny a non-custodial parent from having any visitation. However, in times where a parent has demonstrated that he or she could harm the child or place the child in a harmful environment, the court will order supervised visitation. Supervised visitation can take place in the non-custodial parent’s home, a public park, mall, or even a protected setting such as a professional facility. A social worker, family member, or another third party can be designated to supervise the interaction. And while a judge may require that a non-custodial parent’s visitation be supervised, that same order can be modified if the parent takes corrective measures to show the court that the child will be safe in an unsupervised setting.

Child custody can be filed either independently or in conjunction with another family law cause of action, such as: absolute divorce, divorce from bed and board, annulment, or alimony without divorce. A child custody action attached to a cause of action for absolute divorce can come before the action, directly after, or take place during a pending divorce. An independent custody claim must, however, be brought after the parties have already separated or there must be a pending claim that would lead a judge to remove one parent from the parties’ residence. Parents have a long timeline for when custody can be determined that spans the length of a child’s years as a minor.

Custody agreements contracted between you and your spouse can be modified without the assistance of the court if both parents can come to an agreement amicably. In the event that parents cannot reach an agreement to modify an existing custody arrangement, the court will have jurisdiction to intervene. In such a case, where the parties have an out of court prior written agreement, the court would make its own initial determination of custody and visitation without either party having to show changed circumstances affecting the welfare of the child. The court will base its decision on the best interests of the child.

Child custody is one of the most emotionally charged issues in domestic law. Because of this, it can easily become one of the most expensive aspects of your separation or divorce. However, many couples are able to compromise on custody outside of court, preventing custody from being an issue in more than 90 percent of divorces. In these agreements, typically, one parent (still usually the mother) has been the primary caregiver throughout the child’s life, and the parties agree that this caregiver should continue to have the child most of the time.

In North Carolina, private agreements on custody and visitation do not have to be submitted to a judge. It is, however, important to remember that until a private agreement or court order on custody is issued, the general rule will still apply: each parent has co-equal rights to the physical possession of a child of the marriage.

Also, unless there is some written document establishing custodial and visitation rights, the custodial arrangements are subject to being changed at the whim of either parent. For as long as you don’t have a controlling written document, either you or your spouse could try to change the existing custodial arrangement at any time. Either parent could leave the state of North Carolina with the children, as long as they aren’t leaving for the sole purpose of evading going to court. The lack of a controlling document makes a child vulnerable to an unpredictable living arrangement, which could create feelings of disjointedness.

Lastly, one benefit of creating your own separation agreement is that you have the power to define the custody arrangement that is best for your child, but if a judge has to decide the custody arrangement, you lose your decision-making power.

In civil district court, it’s a trial judge who decides child custody matters. Because a judge is given broad discretion in determining custody, it is important to know a judge’s predispositions prior to trial. While some counties in North Carolina give the parties some flexibility in choosing the judge who will hear their trial, other counties do not allow such flexibility. Most judges will award primary custody to one parent and secondary authority (visitation) to the other parent. The judge also has the authority to divide custody equally between both parties, although that is unlikely.

If the judge and your attorney determine that appearing in court may be traumatic for your child or that your child is too young to understand what may be asked of him or her during the proceeding, your child may not have to speak in court.