Child Custody

Child custody basically has two elements: legal custody and physical custody.

Legal custody relates to who has the right to make decisions for the children. It is either sole (given to one parent only) or joint (shared by both parents). A parent with sole legal custody can make all major decisions for the children unilaterally, including choices about their education, religion, and healthcare. Joint legal custody means that both parents have a say in all important decisions involving the children.

Physical custody relates to where the children live. Sole physical custody means that the child lives the majority of the time with one parent but may have visitation with the other parent. Joint or shared physical custody means the child lives with both parents at different times. Joint physical custody implies a sharing of the day-to-day responsibilities for the children and may be split 50/50 between the parents, although that can vary.

In North Carolina, the court can order parents to go to mediation to settle their disagreements regarding the children and/or to get guidance on co-parenting in a manner that serves the best interests of the children. A situation where the parents cannot agree on a custody arrangement is referred to as “contested custody”. Ultimately, the court can decide who has legal and physical custody of the children.

The most important factor the courts consider when determining custody is the “best interest and welfare of the child”. In making this determination, the courts will consider many different issues including:

• The age and health of the child
• The mental and physical health of the parents
• Physical, mental, emotional, moral, and religious factors
• The child’s preference
• Each parent’s care-taking ability
• Each parent’s home environment
• Each parent’s availability to the child
• Each parent’s economic situation and potential
• The child’s bonding with other siblings; and
• Other factors that illustrate what is best for the child.

While there used to be a preference for awarding custody to mothers, courts now typically have no preference. What courts do focus on is the best interest of the children. This may change as the children grow older, and custody may need to be modified over time as life events affect the children and the parents.

Custody can always be modified. Either parent can ask for a change in custody, but a parent must show that there has been a substantial change of circumstances that materially affects the best interests and wellbeing of the child. For example, a parent might file for a change of custody if the other parent is seriously ill and unable to provide adequate care to a young child due to failing health. This would be considered a substantial change of circumstance that does affect the child in a significant way, and courts could rule for a change in custody.

The parent with whom the child lives the majority of the time (more than 50%) is said to have primary physical custody.

This is the term used for the parent who does not have primary physical custody of the child (i.e., the parent who has less than 50% of the time with the child).

Visitation is the non-custodial parent’s time with the child. A typical visitation schedule might include every other weekend, half of all major holidays, a portion of the summer, and certain other special days such as birthdays, Mother’s Day, and Father’s Day. An experienced family law attorney can advise you as to all of the issues you might want to consider when negotiating a visitation schedule with the other parent. A well-planned visitation schedule can help make transitions better for the child and can make life much easier for both parents as well.

Supervised visitation can be ordered if the Judge is advised that harm or danger could come to a child if visitation is not monitored by a third person. Usually, a supervised visitation ruling by the courts will specify details such as where the visitation can occur, how often, and who is allowed to do the monitoring (such as a social worker or a specified relative).

Prior to a permanent child custody hearing, and in some cases prior to a temporary child custody hearing, the parents are required to attend court-ordered child custody mediation. There are certain circumstances where participation in the custody mediation program is waived such as when a party lives a significant distance from the mediation program, or in situations where domestic violence or drug abuse are factors. The court-ordered mediation process first involves an Orientation Session, and then the parties schedule mediation with a neutral third party who attempts to mediate the child custody dispute. If the parents are unable to reach an agreement during the mediation session(s), then their child custody matter is heard before a District Court Judge.

Having a child testify in court is not usually necessary, and it rarely occurs. A child may be called as a witness in some custody cases, but it is frowned upon in all but the most extreme instances. If a child is required to testify, the parties, their attorneys, and the Judge would all have to agree to allow the child to speak privately to the Judge in chambers. Usually, what the child says in private to the Judge is not made known to the litigants. The Judge will most likely inform the child that what he or she tells the Judge is merely one consideration and that the child does not get to make the decision regarding their custodian. If an objection is made to the child speaking privately with the Judge, the only way the child’s voice may be heard is to call that child as a witness unless there are other professionals involved in the matter who can speak on the child’s behalf or who have formed an expert opinion regarding the child’s needs.

In North Carolina, weight may be given to a child’s preference for custody. Some case law in North Carolina suggests that it may be appropriate for a child who is ten years old or older to assist the Judge in making a determination of custody.

Both parents are obligated to follow any custody orders that are in effect. If something has changed and the best interests of the child are no longer being met by the order, either parent can file a motion with the court to change the custody order. The judge will review the evidence and testimony to determine if the custody and visitation schedule still meets the needs of the child or if it should be changed.