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Child Custody

Generally, the care and support of his or her children are a parent’s primary concern. When disputes about custody, visitation, or child support arise in the context of a separation or divorce, they can be particularly difficult for parents. When parents cannot agree about custody, visitation, or child support, the children suffer as well. Children detect conflict between parents. Children often imagine that they are the cause of the conflict. Children want to please both parents and feel caught in the middle.

The most important thing to remember in a separation is that children take their cues from their parents. If a child’s parents are hostile and bitter, the child will be hostile and bitter. If a child’s parents are civil and respectful to each other, the child will adjust to the separation. Parents must make it clear to children that they are not the cause of the separation. Children need to know that they are loved by both of their parents and are free to love both of their parents. Parents should never fight, argue, or speak ugly to each other in the presence of their children. Each parent needs to encourage his or her child’s relationship with the other parent. Parents need to insulate children from the adult issues. Parents who are able to put the best interests of the children above their own are much more likely to raise happy, healthy, well-adjusted children.

Who is Entitled to Custody?

In order for a court to grant custody, the court must find that the custodian is a fit and proper person to have custody and that custody with that person is in the best interests of the children. There is not a presumption favoring mothers over fathers. All other things being equal, mothers and fathers have equal rights to the custody of their children. There is a presumption favoring natural parents over third parties, such as grandparents, aunts, and neighbors.  Natural parents have protected rights to parent their own children.  However, natural parents can lose those protected rights if they take action that is inconsistent with the best interests of the children.

What is Sole Custody?

Sole legal custody means that one person has sole decision-making power over a child and typically has primary physical custody of that child.

What is Joint Custody?

Joint legal custody means shared decision-making power over a child.  It does not mean shared physical custody of the child. Joint custody means shared decision-making power over a child and shared physical custody of the child. It does not necessarily mean equally shared physical custody. When parents have joint custody, they share in major decisions about a child, and often each parent has the child more than every other weekend. For joint custody to be successful, the parents need to be able to communicate effectively and to cooperate  in  parenting their child together.

How is Custody Determined?

Custody may be agreed upon by the parties.  If it is, the parties may set out the terms of their custody agreement in a Separation Agreement or Parenting Agreement that is not usually filed with the court or in a Consent Order that is filed with the court. If the parents are unable to agree on their own, they can try mediation or arbitration. If they do not want to try alternative dispute resolution, they can go to court to let a judge decide, but in most districts they will be required to attend mediation through the court system before they can be heard by a judge.

What are Visitation Rights?

If one parent has custody, the other has the right to have visitation with his or her child.  There are no general rules about when and how much visitation the noncustodial parent should get. That depends on various factors including ages of the children, the children’s schedules, how

far apart the parents live, and the work schedules of the parents.  When determining a visitation schedule for the noncustodial parent, the parties (or the court) should consider weekdays, weekends, holidays, and summer. As with custody, the parties may agree on visitation in an agreement. If they cannot agree, they can try mediation or arbitration. If they do not wish to try mediation or arbitration, they can go to court and let a judge decide.

What is the Court Procedure in Custody/Visitation Cases?

One of the parties begins the process by filing a complaint (lawsuit) for custody or visitation. The parties generally must attend mandatory mediation before a trial will be scheduled. In some jurisdictions, the parties must also attend parent education classes. In extreme cases, the court may appoint a Guardian ad Litem to represent the children or a mental health professional to perform a psychological evaluation of the parties and/or the children. At a trial, the court will hear evidence and will decide what custody and visitation arrangement is in the best interests of the children.

What is Mediation?

Mediation is when a neutral third party helps facilitate an agreement between the parties. The mediator does not make decisions. The parties make the decisions with the mediator’s help. You can hold a private mediation before or after a complaint has been filed. In addition to resolving custody issues, you can address all support and property issues in a private mediation.  Mediation is generally less expensive and not as time-consuming as court. The parties control the outcome. The entire process can be settled in one day, and you can leave a private mediation with a binding settlement document. The process is very civil and dignified. It can set the tone for how the parties deal with each other from that point forward. If the parties are able to resolve the issues related to their separation at mediation, typically they work together and treat each other better in subsequent dealings with children or otherwise. You do not necessarily need a lawyer for mediation, but we recommend it. A non-lawyer mediator will not know the law. Without an attorney, you could lose or waive rights you did not know you had.

Is Custody Ever Permanent?

No.  Custody and visitation arrangements are always subject to change when circumstances affecting the child’s best interests change substantially.  It can be modified if one party to the action was to file a Motion in the Cause or Motion to Modify Custody.  Although you can accomplish this on your own, it is best to consult with an attorney first before you proceed to make sure that the facts in your case is sufficient to meet this burden of proof.

Can the Child Decide?

No.  The court may consider the wishes of older children, but the court will not let the children decide custody or visitation issues.

How Do I Find an Attorney?

You may contact us at (828) 452-2220 and schedule an in-person consultation or a consultation over the phone to discuss your case.  You may also contact us by clicking here and someone will contact you to schedule an appointment.


Overview

The statutory framework provided by North Carolina for the resolution of child custody and visitation dispute was, for the most part, enacted prior to modern constitutional case law establishing the paramount rights of legal parents to the custody of their children. Consequently, North Carolina appellate cases involving custody and visitation disputes must attempt to reconcile North Carolina’s statutory framework with these relatively new constitutional principles.

Most people think of custody disputes as arising in the context of two parents suing each other over the custody of their children. Although there are more custody disputes between parents that are filed, many of these disputes are resolved through mediation. When they are not, the trial courts consider the contentions of each party and determine which parent should be awarded custody, or joint custody, based upon what is in the best interest and welfare of the child.

The more difficult child custody disputes, that seem more often to go to trial, involve custody and visitation disputes between parent and a third party, such as a grandparent, relative, or someone who has been in a parent-like relationship with the child such as an unmarried cohabiter. In these third-party cases, issues such as the standing of the third party to bring the suit (since suits are not allowed by strangers), and whether the parent has engaged in conduct inconsistent with his or her constitutionally protected status as a parent, take precedence over the issue of what is in the best interest of the child. It is only when these preliminary issues have been established in favor of the third party by clear and convincing evidence that that the court will permit the third party to reach the merits of the suit against the legal parent in determining the party who should be awarded custody of the child based upon what is in the best interest and welfare of the child.

Today’s families are often formed through non-martial cohabitation agreements, domestic partnerships parenting agreements, artificial insemination, surrogacy agreements, in vitro fertilization agreements using ovum or sperm from donor other than the legal parent, and other arrangements. Therefore, it is likely that future third party suits, where the biological link should be found less important, will transform the current constitutional law principles related to the paramount rights of legal parents to the custody of their child.

Regardless, of whether the disputes is between two parents or between a parent and a third party, once the court reaches the merits of the case, the determination of what is in the best interest and welfare of the child must be based upon a number of factors that the court may consider. The trial courts final determination rests in the judge’s sounds discretion. However, the determination remains subject to modification based upon a showing of changed circumstances effecting the welfare of the child.

Types of custodial arrangements

Various terms have been used by attorneys in agreements, and by the courts in their order, to describe the relationship between a child and her or his custodian. One of the first hurdles in representing clients involve in child custody and visitation disputes is to understand the legal significance of terms such as “custody,” “physical custody,” “exclusive custody,” “legal custody,” “sole custody,” “primary custody,” “joint custody,” “shared custody,” “split custody,” and “visitation.” The North Carolina statutes do not define these terms. However, the appellate courts have a rather clear understanding about their meaning and legal significance. The meaning may vary slightly depending on whether the topic under discussion is custodial rights or child support.

Generally, the district court may award exclusive custody of a minor child to an individual, agency, organization or institution, or if clearly in the best interest of the child, the court may provide for joint custody in two or more of the same, at such times and for such periods as will in the opinion of the judge best promote the interest and welfare of the child. Agreements and court orders often refer to the custodial parent as the parent having “exclusive custody” or “primary custody,” and the noncustodial parent as having “temporary custody,” “secondary custody,” or “visitation parent as having “temporary rights” or “visitation privileges.” Although the statute refers to “exclusive custody,” this term has been used synonymously with the term “legal custody.” When such terms are used, the courts are generally referring to the person who not only has physical dominion and control over the child for extensive periods of time, but also the person who is the primary decision-maker on issues such as the child’s health, education, and general welfare.

When the term “joint custody” is used, the courts are generally referring to two persons who share time with the child, and who are both responsible for decision-making on issues related to the child’s health, education, and general welfare. Based on N.C Gen. Stat. §50-13.2. For many years, North Carolina was the only state with a statute specifically authorizing joint custody. The trial judge may apportion custody between two parties to work together in making decisions about major issues related to the minor child. However, in some instances, particularly where parties have a history of not being able to work together on issues related to the children, the trial judge generally prefers a stable home environment for a child’s development, and therefore delegates authority for major decision-making to one parent as opposed to collaborative decision-making.

When there is more than one child in the family, a splitting of the children between parents so that each parent has custody of at least one child, is generally referred to as split custody, although in some jurisdictions, split custody also includes joint custody. However, courts are generally reluctant to divide sibling in this fashion. Courts generally view the parties’ divorce as between the parents and not between or among the parties’ children.

The term “physical custody” generally refers to the person with whom the child resides in a day-to-day basis, and in most instances is the person the “legal custody.” Although the person with “physical custody” may determine the daily routine of the child, major decision-making on issues related to the child’s health, education, etc., may still be made by the person with legal custody, split custody, or by persons with joint custody. When a court order provides that the child will reside with one person for a significant period of time, that person is sometimes referred to as having “primary custody” or “sole custody” of the child. Even though persons with “joint custody” generally share the physical custody of the child, joint custodians often do not share the child for equal periods of time.

N.C. Gen. Stat. §50-13.1(a) provides that unless a contrary intent is clear, the word “custody” shall be deemed to include custody or visitation or both. So the statute itself provides an inclusive definition of the terms “custody” and “visitation” in interpreting order and agreements. As will be noted later, to have standing to make a claim for visitation, a party must have standing to make a claim for custody. A person with “visitation rights” or “visitation privileges” has the right to physical custody of the child for certain prescribed periods of time. In some cases the person with visitation rights or privileges has no decision-making authority over the child. Many trial courts award one party primary custody and the other party visitation, and in doing so, include some provisions in the order that delineate some shared decision-making authority. However, such arrangements are more typically referred to as shared or joint custodial arrangements.

Please call (828) 452-2220 to arrange a teleconference or in-person meeting to further discuss your case with an attorney.