Custody cases are unpleasant and can be time consuming and expensive. It’s far better for parents to resolve their issues in an agreement than have a third-party judge do it for them. However, if litigation is necessary, it’s important to know how the statutes of North Carolina guide lawyers and judges in conducting and deciding custody cases. The applicable North Carolina General Statutes contained in sections 50-13.01 et seq. are the fundamental custody laws of North Carolina. The Uniform Child Custody Jurisdiction and Enforcement Act addresses jurisdictional disputes in custody cases, such as when a parent and child live in one state and the other parent in North Carolina, or vice versa.
The experienced family law attorneys at Weaver, Bennett & Bland, P.A. can guide you through this difficult time in your life, provide advice before separation, during negotiations and in resolving these matters with an appropriate child custody agreement. If litigation is required, our family law lawyers will exert their time and energy assisting you in obtaining the custody of your children that you and they deserve and need.
Two Types of Child Custody
There are two types of custody – legal and physical. There are numerous permutations of each. The first thing to recognize is that there is no legal definition of “sole” custody or “primary” custody or even “joint” custody. Such custody is as the parents agree it is in a custody agreement or consent order or as the court decrees it is in its ruling.
Legal custody refers primarily to how the parents make important decisions regarding their children. One parent may make all decisions, and for some reason, the other parent has abdicated any right to participate in those decisions. The parents may be required to reach a mutual conclusion, and if impossible, there may be some mechanism set in place to determine the outcome, the use of a mediator, a parent coordinator or some other method. Each parent may be given the final say in one or more areas of interest or expertise.
Legal Custody also refers to regulations for how the parents treat each other and the children; such as notifications, right to access to medical and educational providers and records, and the like.
Physical custody is just when and how each parent spends time with their children. There is rarely any court-ordered custody arrangement where one party has the children reside with him or her, and the other parent never sees the children. Visitation or custody periods can be as little as 2 or 14 days or as much as a 50-50 split, 7 of 14 days each. The schedule will be determined by the parties in an agreement or Consent Order or by the court after a trial.
The number of overnights a parent has with the minor children will play an essential part in determining how much a custodial parent will receive in support and how much a non-custodial parent will pay.
What if a Custody Agreement Can’t be reached?
If an Agreement can’t be reached, legal action may result. In NC, mediation is required before a custody trial. If mediation is unsuccessful, a hearing will determine what custodial arrangement is in the best interests of your children.
Each case will be determined by the facts presented in court based on that family’s situation. The paramount goal of the Court will be assessing the best interests of the children. A few of the many question’s judges want to be answered is essential in deciding where and with whom the children should reside are:
§ Which parent is the primary historical caretaker of the children, and which parent is currently acting in that role?
§ Which parent has more knowledge of excellent points like the children’s clothing sizes, teacher’s names, grades in school, friend’s names, and favorite things?
§ Which parent is most cooperative with the other regarding decision making and extra custody time?
§ Where do the parties live and what is their neighborhood like? What are the ratings of the schools the children will attend?
§ What are each parents’ disciplinary style and lifestyle?
§ Does a parent have any special skills/training that tends to be desirable in a custodian, e.g., pediatrician or Teacher?
§ Have there been past actions that would lead a court to determine that one or the other parent is not the parent to whom the court should award custody?
Can a Child Decide Which Parent to Live With?
Contrary to popular belief, a child does not have the right to determine where he/she lives at age 12, or any age. However, a child of suitable maturity and discretion may be able to provide facts to the judge in chambers that will lead the court to determine the child’s preference and consider it. A judge rarely asks the ultimate question, “Whom do you want to live with?”