Child custody issues are frequently difficult and emotional for everyone involved in the matter and a child custody lawyer is frequently required to help you navigate the minefield of issues that may crop up along the way. The child custody attorneys at The Hart Law Firm have a significant amount of experience negotiating and litigating child custody matters and understand what is at stake for you and your family.
The purpose of this article is to serve as the ultimate resource for all child custody related matters in North Carolina.
What Is Child Custody in NC?
Child custody is a bundle of legal rights and duties that parents share regarding the general welfare, upbringing, education, religion and healthcare for their minor children. When parents disagree over these issues, then the custody of their minor children is in dispute.
Unfortunately, when parents cannot come to an amicable agreement over the custody of their minor children, nobody wins. While the parents think that they are advocating for what is in the children’s best interest, they are doing nothing but hurting the long-term health and well-being of their children.
For that reason, the child custody lawyers at The Hart Law Firm are zealous advocates of attempting to work out a child custody arrangement without going to court. However, in the rare event that the parents cannot agree, and if we feel passionately about why our client wants to file a custody lawsuit, then we will take on a case and represent them in court.
How Does Child Custody Work in North Carolina?
In North Carolina, parents who choose to legally separate are strongly urged to come to a custody arrangement without involving a judge. If you are able to work through the various aspects of your custody situation outside of court, a child custody agreement can be drafted that spells out how custody will be handled.
If you wish, the terms of your custody agreement can be included in a consent order that is enforceable and/or modifiable through the court system in the event that issues arise later on.
As mentioned before, child custody arrangements may address the your child’s general welfare, education, healthcare, religious upbringing, and various leisure or recreational activities that your child will take part in.
Because every child and family situation is unique, a child custody agreement should be uniquely tailored to fit the needs of your personal situation. This is not the place for cookie-cutter agreements that can be found online for free. Your custody agreement should clearly and explicitly address all of your child’s unique needs and give you the freedom to change the agreement in the future should the need arise.
What is the Court Procedure in Custody/Visitation Cases?
While we advocate negotiating outside of the court system, we also recognize that there are situations in which you are forced (due to circumstances beyond your control) to file a custody lawsuit in the county where you and/or the child reside. This is started by filing a complaint for child custody or visitation. Just because someone files a complaint does not mean that your case will end up in front of a judge.
A frequent reason to file a complaint is to allow the parents to take advantage of mandatory child custody mediation that is required prior to scheduling a child custody trial.
What is Child Custody Mediation?
In the vast majority of cases, child custody mediation will help the parents to reach a final resolution on custody. In Wake and many other counties throughout North Carolina, attorneys are not permitted to attend the child custody mediation session.
In the event that your case does not resolve at mediation, the next step of the process is to attend a temporary child custody hearing. This hearing typically lasts 2 hours and each parent is given equal time to provide evidence, call witnesses, and present their case to the judge. At the end of the hearing, the judge will issue a temporary order that makes a decision on who will have custody of your child, and what the visitation schedule will be.
In many cases, this temporary ruling will become a final custody order after one year – assuming neither parent challenges the ruling or asks for a final custody hearing.
What are the North Carolina Child Custody Laws?
At the heart of the North Carolina Custody Statute is the idea that the best interest of the child must be followed in every case. This means that the court doesn’t care whether you are the father or the mother, or married or not. The court care’s about your children and what is in their best interest.
What does this mean? It means that the court will consider all the relevant factors of your case to make a child custody determination.
Here are a few of the factors that a judge may consider:
- Acts of Domestic Violence between the parents;
- The educational history of the child;
- The mental, physical and moral capabilities of each parent;
- The health of each parent;
- The living conditions of each parent;
- Maintaining continuity for the minor child;
- Whether the custodial parent is able to provide for the minor child;
- The love and affection existing between the parents and the child;
- Whether the parent will cooperate and encourage contact with the other parent;
- Whether the custodial parent will be reasonable in accommodating any changes that must be made to the custodial schedule;
- Whether the parent will honor the visitation schedule;
- The involvement of each parent in the child’s life (i.e. knowledge of teachers, friends, extracurricular activities, etc.); and,
- Any other factor the court should consider.
Do we have to go to court or can we agree on child custody as part of our separation agreement?
No, you do not have to go to court. In fact, the vast majority of people will agree on a custody schedule and arrangement without involving the court system at all. Most frequently, the parents will write out an agreement and custody schedule that can be incorporated into their final separation agreement.
This is the favored approach by both child custody lawyers and the judges when the parents are able to agree on most child-related decisions and can communicate well with each other.
However, if you and your spouse can’t see eye-to-eye on anything, are arguing a lot, (especially about the kids), and rarely agree on anything, then a separation agreement may not be the best approach. In those situations, we will frequently recommend a therapist that specializes in co-parenting prior to filing a court action. But if your spouse refuses to attend therapy, then filing a custody lawsuit may be inevitable.
Who Can File For Child Custody?
Any relative or other party can file a child custody claim in North Carolina. This includes grandparents. However, the non-parent must show that the parent is unfit or has acted in a way that would be considered inconsistent with their ordinary parental duties or obligations.
When a non-parent files for custody, the child’s natural parent will be entitled to care for and maintain custody of the minor child unless or until the court determines that the non-parent would provide better parental care than the biological parent.
Will My Child Custody Case Go to Court?
Not necessarily. As we have mentioned before, as a child custody law firm, we strongly urge our clients to pursue all possible non-court options, including collaborative divorce, mediation, and even meeting with a co-parenting therapist, before pursuing judicial proceedings.
When you take a child custody case to court, not only do you lose control and the ability to make decisions on your case, but you will spend potentially tens of thousands of dollars on legal fees, expert witnesses, and forensic evaluations. While this may be necessary in some cases, for most it is not.
Whether or not your child custody case goes to court will depend in large part on you and your goals, as well as the child custody lawyer you decide to hire. For a lawyer, going to court is a lot easier (and more lucrative) than attempting to artfully negotiate a settlement that will work for all involved. But for you the parent, going to court should be the last resort.
Do I Need a Child Custody Agreement?
There is no legal requirement that you have a custody agreement in place, and many parents go years without ever having to negotiate a custody agreement. Whether or not you need a child custody agreement will depend on a variety of factors, including: how many children you have and their ages, how well you get along with the other parent, how close together or far apart you live from the other parent, and the general history of your family.
A a child custody lawyer, we strongly urge everyone to have their custody agreement in writing, even if they never use the agreement. It is always good to have an agreement to fall back on in the event of a future dispute. In addition, if it does become necessary to file a child custody lawsuit later, the agreement will be used by the court as a factor to determine what is in the best interests of the child.
We don’t have a custody agreement and there isn’t a court order in place, so who has custody of our child?
At the very beginning of a case, before there is an agreement or a court order in place that addresses custody, both parents will have equal rights to the child. However, this is a less than ideal situation, especially in cases where the parents are not on speaking terms.
Either parent can take any unilateral actions they want with regards to the child, and the only recourse you may have is to address this with the court in a future custody hearing.
In addition, either parent may legally remove the child from their school, the state, or even the country (with a valid passport). These types of behaviors will be heavily scrutinized by the court at a future hearing, so it is important that you be on your best behavior when it comes to decisions about the custody of your children.
If you find yourself in a situation where the other parent is making significant unilateral decisions regarding the custody of your children, without your consent, then we highly recommend that you contact a child custody lawyer to discuss your situation and get legal help.
Can my child decide who they want to live with?
Legally speaking, no. Depending on the child’s age and mental capacity, they may be permitted to testify in court or talk to the judge in chambers about their preferences. And although the court may give considerable weight to the child’s wishes, the court is not bound to agree with the child.
What this means is that a judge will listen to what the child would like to do, but can rule differently if they feel that the child would be better off living with the other parent.
Do courts favor the mother over the father?
No. There is no longer a presumption in North Carolina that the mother is a more fit parent than the bather.
How long does the process take?
The entire child custody process will take longer than you would like, and will cost more than you would like. This, along with the fact that nobody wins in a custody trial, is why we do our best to resolve issues of custody outside of court, through negotiation, mediation, or as part of a collaborative divorce.
In Wake county, your case is likely to take at least 12-18 months. This is due in large part to the backlog of cases currently crowding an underfunded court system, as well as your child custody lawyers need to collect evidence to use in support of your case at trial. Rushing through a custody trial with inadequate evidence is not a smart decision.
Types of Child Custody in North Carolina – Legal Terminology You Must Understand
Most people don’t understand that when we are talking about custody, we are really talking about two distinct legal terms. There is physical custody and legal custody.
Legal custody determines who has the decision-making power over essential matters for your child, such as where they will go to school, health care decisions, religious upbringing, extracurricular activities, and more. In almost every case, the courts will aware joint legal custody.
Physical custody is where your child will live on a day-to-day basis. There are joint, split, and primary custody arrangements. Joint custody is where the child will live with one parent ½ the time and the other ½ the time. Split custody is where one child lives with one parent and another child lives with the other parent. Finally, primary custody is where the minor child lives with one parent the majority of the time.
How Much Will My Child Custody Case Cost?
Yet another reason to try to settle your child custody case outside of court is because of the cost associated with taking a child custody case to trial. In addition to paying your legal fees, you will likely be asked to pay at least a portion of the bill for some of the other legal experts and witnesses:
- Parenting Coordinator
- Guardian ad Litem
- Child Custody Evaluator
- Family Therapist
- Child Therapist/Psychologist
- Other expert witnesses as necessary
You may be asked (or court ordered) to prepare a child custody evaluation – these alone can run into the 10’s of thousands of dollars. You may elect to pay for some of these witnesses and experts on your own, others will be court ordered.
So it is easy to see how a custody case can easily cost $10’s of thousands of dollars after everything is said and done.
Can Child Custody be Modified?
The simple answer is that yes, you child custody order can be modified. The more complicated answer is that you have to show the court that there has been a substantial change in circumstances and that a custody change is in the best interest of the child.
Frequent causes for a custody modification are:
- One parent has moved (or is contemplating moving);
- One parent gets remarried;
- The child ages out of the original custody schedule (i.e. what worked when they were 3 is no longer applicable to a teenager);
- Behavioral issues that one parent cannot handle alone; or,
- The child reaches an age where they have decided they want to live with the other parent.
There are as many different reasons to take another look at a custody arrangement as there are children in the world. Every situation is different and unique, and custody is one of those things that a court will take another look at if the situation warrants it.
How Can A Child Custody Lawyer help?
If you are faced with a situation where you are looking at a legal separation, dividing time with your children may be one of the most important issues that you will face as part of your family law case. A child custody lawyer can help you to navigate the issues that frequently come arise, come up with workable and realistic custody schedules that meet the needs of your children and your family dynamic, and offer counsel, guidance and advocacy in the unfortunate event that your case ends up in the courtroom.
We can also talk you through the issues of your case and be a voice of reason that helps you to understand whether you or your spouse are being unreasonable in your negotiation about the custody of your children.
Finally, we have relationships with many local therapists and counselors and can help to steer you in the right direction in the event that you need professional help for issues related to the co-parenting of your children.
What are my next steps if I have a Child Custody issue?
If you are thinking about separating, or if you already have, you should call our office at (919) 460-5422 to set up a meeting with a child custody lawyer to discuss your options. Alternatively, you may fill out our contact form and a representative of our office will reach out to you directly.