North Carolina Child Custody Questions

North Carolina child custody lawyers answers frequently asked questions about North Carolina child custody and North Carolina custody laws.

Who will get custody of our child?

It depends. In North Carolina child custody is determined by using a standard whereby the judge will determine the best interest of the child.

The judge looks at every relevant factor that has to do with the children i.e. the stability of the parties, the living situation of the parties, who encourages the child in educational endeavors, and every other factor that has to do with the children.

While parties can contract outside of the court as to who has custody of the children, the court always has the opportunity to come in and determine the best interest of the children.

What is joint custody? What is sole custody?

Joint physical custody is the sharing of the children between the parties. Sole physical custody is whereby one party gets custody of the children for a significant period of time. You must be careful to clarify if you are discussing physical or legal custody.

While physical custody relates to where the children are staying, legal custody is the ability of the parties to make important decisions for the children (i.e. education, religion, medical, etc.).

Joint legal custody is where the parties both have decision-making authority and must agree with one another.

Sole legal custody is where one parent has the authority to make these decisions on their own.

If both parents share custody does anyone pay child support?

It depends on the parties’ incomes, who pays the health insurance, child care costs, and other expenses on behalf of the child. It also depends on how many overnights each party gets with the child.

In order to determine if either party has to pay child support one should see an attorney who can apply your specific facts to the situation and see if child support is an option.

Can a parent refuse to allow visitation if child support is not paid?

The appropriate remedy for someone who does not pay their child support is go in front of a judge and have the judge determine the appropriate solution.

If the court initially ordered child support to be paid, then the appropriate remedy is to file a Motion for Contempt for their failure to pay the required child support.

If the child support was an agreement between the parties and was not incorporated into a court order, then you would have to Motion the Court to require the party to pay child support.

I would not refuse visitation with the parent based on the fact that child support is not paid. If custody and support were ordered by the judge, and you refuse visitation, you may get into a situation whereby you have both violated the order of the court (one for child custody and the other for failure to pay child support).

When can my child decide which parent to live with?

In North Carolina, there is no set age as to when the court will take into consideration the wishes of the child. Even if the court will take testimony of the child (only in those instances when the court is satisfied that the child is of a suitable age to testify as to their wishes), the court does not have to take their preference into consideration when determining custody rights.

It is in the discretion of the judge whether or not to even take the children’s wishes into consideration.

Do grandparents have custody and visitation rights?

Grandparents only have standing to gain custody when they can justify to the court that both parents are unfit or have acted in some other way that is inconsistent with their parental status.

In order for a grandparent to ask the court to grant them visitation rights there must be a custody order signed by a judge or an ongoing custody battle. The policy behind this is that the courts do not want to disrupt the intact family and will only allow grandparents to intervene if there is a disruption in the family, i.e. a custody action has been filed.

If the grandparents are allowed to intervene, the grandparents must prove that it is in the best interest that they have visitation with the child.

What is a parenting plan, and do I need one?

A parenting plan is a written agreement between the parties about how they will raise their child/children. If the parties are involved in litigation for custody, the court will order that both parties attend mediation and see if they can work out a parenting plan/agreement between themselves. However, it is not required.

If the parties cannot decide on how they should parent their child then the court will determine what is in the best interest of the child given the situation.

If my separation agreement includes custody/support can it be included in the divorce decree?

Yes, it can be included in the divorce decree. You do this by incorporating your custody/support agreement by reference in the body of the judgment for divorce. In that sense, the separation agreement becomes a court order, which carries with it the power of contempt.

What can I expect from temporary orders?

Temporary orders are meant to put into effect a plan until a more permanent hearing can take place. For temporary orders, the order must state a clear, specific reconvening time to come back for a hearing on the merits.

Additionally, temporary orders are not immediately appealable and are not prejudicial to either party.

However, one must be careful for if a temporary order remains untouched for a reasonable time (i.e. there is no permanent order to take its place) it will become permanent. There is no specific time frame for when the temporary order will become permanent so one must take care to make sure that the permanent hearing takes place as soon as possible after the temporary hearing.

Further, on temporary orders there is no burden to overcome. When you return to court for a hearing on a permanent basis the standard is still the best interest of the child and not a substantial change in circumstances (which is the burden to change permanent orders).

When will child custody be decided?

This depends. If you and the other parent can agree and enter into a Consent Order, then it can be decided as soon as you and the other side come to an agreement. Otherwise, there are a number of steps that must be completed until child custody is determined by a judge.

For example, in Mecklenburg County, you must complete parent education, mediation orientation, and then mediation in order for a judge to determine custody. Once those are completed, or waived by a judge, you can schedule your child custody to be decided in front of a judge.

Your case will be heard depending on the judge’s schedule and how many custody cases are in front of you. You can however, schedule temporary child custody determinations prior to a permanent hearing to get some sort of order in place pending a hearing on permanent custody. These temporary hearings are usually faster to be heard than a permanent hearing.

When can I modify custody?

In order to modify a permanent child custody order, you must first prove there has been a substantial change of circumstances that affects the child and has occurred since the date of the initial order. This substantial change of circumstances can be either a positive change or a negative change, but it must affect the child. After you have met that burden, the court then determines what is in the best interest of the child/children.

What if we cannot agree on a custody arrangement?

If the parties cannot agree on a custody arrangement then you will have to petition the court to decide for you. The court will determine who gets custody based on the best interest of the child.

What is an ex parte order?

An ex parte order is an order that is granted without giving the other side notice of the hearing. An ex parte order is only granted in circumstances that there is a substantial risk of bodily injury or sexual abuse, or a substantial risk that the child may be removed from the state to avoid jurisdiction.

An ex parte order is only granted for a short period of time. At the conclusion of that time, all parties come into court and the judge hears from all parties and decides whether to continue the ex parte order based on all the evidence.

How is custody decided?

Custody is either decided by the parties in the form of an agreement or it is decided in front of a judge. In its initial determination, the judge will use the best interest of the child standard in determining custody.

In subsequent actions to modify a permanent order, then the moving party must prove that there has been a substantial change of circumstances affecting the welfare of the child from the time the last order was entered.

How can I increase my chances at getting a larger custody agreement?

You can employ many different tools to increase your chances for a larger custody agreement. One key thing is to document everything that happens between you, the child, and the other parent.

Also, having a stable environment for the child, helping the child foster a relationship with the other parent, helping the child in school, and doing other things that benefit your child’s development will help your chances of getting a better custody arrangement.

What is visitation?

Visitation is a lesser degree of custody. Some courts favor using the term primary custody and secondary custody as opposed to using the term visitation. Visitation refers to the right to visit with the child.

Can a judge order supervised visitation or no visitation?

Yes, the judge can order supervised visitation or no visitation at all. In order to determine no visitation, the judge has to determine that one parent is unfit or has acted in another way that is inconsistent with their parental status.

Supervised visitation is granted if there is a serious potential that harm could come to the child and the parent has done things that have warranted the conclusion that unsupervised visitation is not in the best interest of the child.

Do courts favor the mother over the father?

No, North Carolina has abolished any presumption over either the mother or father. The courts must use the best interest of the child in determining custody.

What should I know before a custody trial?

The first thing that you should know is that it takes awhile for the court to hear a custody trial. Also important to note is the fact that the judge has wide discretion in awarding custody.

One of the best tips for preparing for a custody trial is to document everything. Even if you do not feel it is relevant, it is best to document everything that happens regarding the children. This documentation can turn out to significantly increase your chances of custody.

Can I collect my own evidence to use if my custody case goes to court?

Yes, you can collect your own evidence. You must be careful that the evidence you obtain was done so legally and is not a violation of any state and federal law. It is best to speak to an attorney so they can advise you on the legal ways to obtain the evidence to help in your custody trial.

Do I need to use a Guardian ad Litem/Custody Evaluator?

No, a custody evaluator and/or a Guardian ad Litem are not required.

A Guardian ad Litem is an attorney that is appointed to be the child’s attorney and speak on behalf of the child’s best interests. They speak to the child and advocate for what the child wants in terms of custody and speak to the Judge on their findings. A Guardian ad Litem is not necessary but is a good tool to use if you feel that your child’s voice is not being heard and you feel that the other parent is manipulating the child.

The judge can appoint these individuals on their own motion or you can petition the court to appoint one on behalf of your child.

Will my child need to appear in court?

Perhaps. In North Carolina, the child may be allowed to testify if they are of a suitable age and discretion. There is no definite age. Additionally, if both parties consent, the judge can talk to the children in private, with only counsel present.

What is the Parental Kidnapping Prevention Act?

The Parental Kidnapping Prevention Act imposes a criminal sanction against whoever removes a child from the United States or keeps the child out of the United States with the intent to obstruct the lawful exercise of parental rights. This statute imposes a fine or imprisonment for up to three years.

What if my wife tries to move the kids out state?

If there is no custody order or pending custody case, then it is hard to prevent a parent taking a child out of state. This is because both parents have equal rights to the child. If there is an imminent threat to the child or they are taking the child out to evade jurisdiction, then you can try to get an ex parte order granting you custody until a judge can determine custody.

If there is a pending custody action or a custody order and they try to take the child out of the state, you can contact that state’s local law enforcement to get them to enforce the order and help you return the child.

In North Carolina, there is a law that makes it a crime if a person takes the child out of state with the intent to violate a court order.

Can a parent change the child’s last name without the other parent’s permission?

If both parents are still living then you need consent from both parents to change the name of a minor child.

However, if the minor child is 16 or older, then the clerk can allow the name change if the parent who has custody and has supported the child makes the proper application and the clerk determines from the information presented that the other parent has abandoned the child.

If I have custody, will I receive child support?

This depends on a number of factors. It depends on how many overnights you have the child, how many children are involved, the gross monthly income of the parties, who is paying health insurance and child care costs, and if there are any extraordinary expenses. It is best to contact an attorney to determine if you are eligible to receive child support.