NC Child Custody FAQ
NC Child Custody FAQ
Child custody issues are difficult for everyone involved. At the McIlveen Family Law Firm, we understand the delicate issues you are facing and we know the law.
Can we agree to child custody in a separation agreement?
Yes, and many people are able to agree to a custody schedule without going into court. This is often done by a separation agreement. It’s generally the best approach when the parents are able to agree on most decisions and communicate well with each other. However, if the parents argue a lot and rarely agree on decisions, then a separation agreement is probably not the best approach.
We don’t have a custody agreement and there isn’t a court order so who has custody of our child?
You both do. Without an order from a judge or an agreement, you both share equal rights to the child. However, the informal arrangements you make can be broken or changed at the whim of either parent. It is also entirely possible (and legal) for the other parent to take the child out of the state without notifying the other parent. Although such behavior is definitely frowned upon, it’s not prohibited. This scenario is why it is so important to have a custody order signed by a judge that can be enforced.
Can my child decide who he/she wants to live with?
Maybe. If your child has the sufficient mental capacity to offer a reasoned opinion as to where he/she wants to live then the child can testify either in open court or the judge may hear the child in chambers. The child’s wishes are “entitled to considerable weight” but they are not controlling on the judge’s decision. In other words, the judge has to consider what the child wants but can rule differently if there are reasons why the judge thinks the child would be better off living with the other parent even though it isn’t what the child wants.
If we can’t reach an agreement and we have to go to court how will the judge decide where our child will live?
In N.C., child custody is determined by a judge. You are not entitled to a jury trial on the issue. The judge will listen to the testimony of witnesses who are called by both parties and make a decision as to what “is in the best interest” of the child. The judge has wide latitude to decide the case how he or she sees fit. As you can imagine it is important to know the judge and how he/she often rules in certain situations. The judge can decide to give both parents equal custody or give one parent physical custody and the other parent visitation. In rare cases where the child is in danger, the judge may order no visitation or supervised visitation.
What factors will a judge consider to determine where my child will live?
The judge will look at any factor that has to do with what is in the best interest of your child. However, the North Carolina General Statutes specifically state that the judge SHALL consider “all relevant factors”. Some factors a judge will consider are: acts of domestic violence between the parents, the parents’ sexual conduct (whether or not the child is exposed to sex in the home), child’s education, physical and emotional health of the child and parents, living situation of both parents, spiritual development (cannot prefer one religion over another but can take into account if there is a parent who will nurture the child spiritually), etc.
What is the difference between legal custody and physical custody?
Legal custody refers to parents’ rights and responsibilities to make decisions with important and long-term consequences for their child’s welfare and best interest. Common examples of decisions a parent with legal custody can make include deciding what school their child attends, arranging medical care, and whether or not their child will participate in religious activities. In general, if the decision has anything to do with the child’s welfare, then it falls into the realm of legal custody. If the parents struggle to reach mutual agreements regarding the child, then the court will usually award one parent primary legal custody. Parents who can get along will usually have joint legal custody and share the decision-making process.
Physical custody is easier to understand; physical custody means the physical care and supervision of a child. A parent with physical custody of the minor child has the ability to make day-to-day decisions for the child because the child is in that parent’s care. For example, if a child is in the parent’s physical custody, then the parent decides what they eat, where they spend their time, what clothes they wear, etc. Where do I file for custody? You will file a complaint for custody in the state where the child has resided for the past 6 months. If there is no state where the child has resided for 6 months then you need to contact an attorney. You can file the complaint in the county in which the child lives or in a county where either of the parents live.
Are there other “types” of custody?
Yes, but you won’t find them in the North Carolina General Statutes. A parent with “primary custody” is the parent who has the child the majority of the time. A parent with “secondary custody” has the child less than 120 overnights per year. “Joint custody” occurs when both parents have at least 120 overnights with the child per year. “Visitation” is a lesser degree of custody and refers to the right to visit with the child. Some judges prefer using the terms primary custody and secondary custody as opposed to using the term visitation. The judge is required by the statutes to consider awarding joint custody if requested by either parent.
Do courts favor the mother over the father?
Not anymore. North Carolina has abolished the presumption that it is in the best interest of the child for the mother to have custody over the father.
What are the chances that I will get primary custody of my child?
No attorney can answer this question with 100% certainty because the laws surrounding custody are not black and white and vary tremendously from case to case. However, what an attorney can do is explain the trends we see on a daily basis in the courtroom. The NC legislature recently passed a new law that was signed by Governor McCrory in October 2015, which amends the current child custody statutes. The public policy driving the new law is to promote joint parenting in custody disputes. The law goes on to state that NC’s policy is to encourage maximum contact between a child and each parent and that the court should PRESUME that both parents are fit parents and that the parents’ inability to get along with each other should not be used to overcome this presumption. In other words, the NC legislature just effectively strong-armed judges into awarding joint custody. Some argue that this law is a prime example of the legislative branch blatantly ignoring the separation of powers and extending their control over judicial affairs, but alas, it is the law. With that being said, absent a showing that the other parent is unfit, it is difficult for one parent to be awarded primary custody. However, the court will certainly look at other factors such as the distance between the parents’ houses, the child’s school
How long does the process take?
If you are unable to come to an agreement with the other parent, then go ahead and mentally and financially prepare yourself for the process taking at least a year. The caseload varies from county to county and you can expect a custody case in Mecklenburg County taking a least a year to get a trial date. The harsh reality is that the NC courts are not allocated enough money from the NC legislature and Governor to adequately run an efficient court system staffed with enough judges to hear the cases. Even if the courts could accommodate the ever-growing court docket, your attorney will want enough time to collect evidence and prepare for trial. Additionally, most counties require that the parties attend mediation and a parent education class. Once those are completed or waived by the judge in appropriate circumstances, you may schedule your custody trial.
Can I modify custody?
You may modify a permanent child custody order if there has been a substantial change in circumstances, positive or negative, affecting the well-being of the child since the date of the initial order. Once you show the court that there has been a substantial change in circumstances, the court will then decide what is in the best interest of the child.
As you can see child custody issues are as complex and as varied as the people experiencing them. If you want more information about your particular case contact the McIlveen Family Law Firm at (877) 959-7594 to schedule a consultation.