Child Custody In North Carolina
There is no other issue that is more important in family law than your children and we will we fight hard for you and for them. Issues of custody can be one of the most emotional and can become one of the most expensive; especially when experts need to be involved and evaluations conducted. Luckily, many issues of custody can be settled between the parents or other parties in an agreement before a case ever reaches a hearing or trial. When settlement is not possible, we will stand beside you to fight the most difficult of cases, whether you have an abusive spouse, a narcissistic partner who just won’t back off, issues with child protective services, or complex psychological issues that are harming your children, we are uniquely positioned to help you with your case. With an extensive background in clinical psychology and work with domestic violence, Tiffany is experienced and tough when it comes to fighting for and protecting your children.
Custody is only an issue when there are children who are under 18 years of age. If your children are older than 18 you would not be able to bring a custody action, as they can make their own decisions (legally). If there is an issue of capacity or competency, you would need to file for guardianship once your child has turned 18.
Types Of Custody
Physical Custody is who the child lives with. Physical custody can also be sole or joint. A judge has wide discretion as to how they will award physical custody. At least, in Wake County, there is generally no longer a preference towards mothers receiving primary physical custody. The judges use a “best interests” standard in determining who the child should be with more often. It is not always a matter of who is the “better” parent but may be a matter of whose schedule or home may be in the best interest of the child. If all else is equal, some kind of physical custody is generally awarded to both parents, as it is usually not in the best interest of a child to be completely cut off from one of their parents, absent abuse and neglect.
Legal Custody is simply decision making power over important decisions of the child’s life: such as education, spiritual upbringing, and health. Legal Custody can be sole or joint, but for the most part joint legal custody is awarded, unless one of the parents gives the court a good reason not to give that parent decision making authority over the child: such as abuse and neglect, severe mental health issues, incapacity, lack of care, contribution, or interest in the child, or any other reason where the parent poses a risk to the child or it is not in the best interest of the child for the court to award legal custody. Generally speaking, the court is going to award 50/50 legal custody to most parents.
- Sole or Exclusive Custody is when only one parent has the absolute power to make decisions for the children. That doesn’t mean that you can’t seek or consider the input of the other parent but you don’t have to. Your signature and authorization alone is enough and you will not need the consent of the other parent to enroll the children in school or day care, authorize medical care, authorize other services, etc.
- Joint Custody is when both parents have decision making rights over the children or the ability to have physical custody of the children. Joint custody applies in almost all cases. Unless, one of the natural parents is deceased, their parental rights have been terminated, or there is an agreement between the parties or a court order stating otherwise, biological parents will have equal rights to their children by law. Even if one parent refuses to pay child support or only comes around twice a year to see the children, until you take action to file a custody action and define with a court order who has what kind of custodial rights, your rights will be presumed to be equal, and the police will be stuck should they be called if there is an issue. If you are having issues with the other parent, you need to have a signed parenting agreement or custody order from the court to protect yourself and your children should a dispute arise in the future.
Emergency Custody – In North Carolina, there are only three reasons why a court would grant custody to one parent or petitioner on an emergency basis. The court will not grant emergency custody unless: 1. the court finds that the child is exposed to a substantial risk of bodily injury; 2. or sexual abuse; 3. or that there is a substantial risk that the child may be abducted or removed from the state of North Carolina for the purpose of evading the jurisdiction of North Carolina courts. Depending on the county in which you live and the judge who hears your motion, emergency custody is not easily achieved. The standard for substantial risk or bodily injury is quite elevated in most cases. The fact that the other parent’s home is a mess and doesn’t regularly take the children the doctor would not qualify. The court is looking to see whether the child is exposed to bodily injury, risk of death, drugs or criminal activity in the home, severe abuse or neglect, such as being beaten or starved, or molested. Finally, if one parent removes the children from the state of North Carolina without the consent of the other parent, they subject themselves to being hauled back to North Carolina by an emergency order, which can be accompanied by the power of arrest for failure to return the children to North Carolina. If you need to flee the state for issues of domestic violence, it is very important to seek a domestic violence protective order in North Carolina before fleeing or to seek an order of protection as soon as you reach the state you are seeking protection from. Emergency Custody is governed by N.C. Gen. Stat. 50-13.5(d)(3).
Parental Kidnapping – Without a standing court order and recorded custody decision or a signed written agreement between the parties, there is no parental kidnapping. Parents are seen as having equal “rights” to their child and either can go where they want, when they want with that child at any time. That being said emergency custody may be granted in North Carolina if the child is in jeopardy while in the custody of one parent or is removed from this state.
Rights of Parents – Natural parents have constitutional rights to the care, control and custody of their children, therefore, until a written, notarized parenting agreement is in place or a judge issues an order for custody both parents have equal legal and physical custody rights which can lead to complications should disputes between parents or other parties arise. Most times the police will not get involved if there is not a writing (either an agreement or an order) for custody, leaving parties fighting and children stuck in the middle. Therefore, if you and the other parent begin to have problems with custodial exchanges, you may want to speak to an attorney, who can discuss with you whether a parenting agreement or a lawsuit for custody will be a better option for you.
Rights of Grandparents and Third Parties – Grandparents have limited rights to the custody of their grandchildren and do not have the same constitutional rights as natural parents do, however, North Carolina has carved out a specific right to visitation in our statutes if grandparents have a substantial relationship with the minor child and granting visitation or custody to the grandparents is in the best interests of the child. There is a distinction between custody and visitation as it applies to grandparents and you should seek the advice of an attorney before pursuing this type of claim, as it can be fairly complicated. Third parties, other than grandparents, may seek custody of children, even children other than their own, but are subject to very strict standards and must pass constitutional muster prior to being awarded custody of a child who is not their own. Again, it is advisable to seek the advice of an attorney for third party custody claims.
Litigation – Anyone can file a lawsuit in North Carolina for custody, but the court will only make an award of custody to the person, agency or institution who will best promote the interest and welfare of the child. Once a lawsuit is filed there will generally be two hearings for custody (but not always). The first, is called a temporary hearing – it is limited in duration, generally only lasting one or two hours and the order by the judge is also usually limited in duration. A permanent hearing will then be scheduled or will need to be scheduled. If a permanent hearing is never scheduled and more than a year goes by, it is North Carolina law that temporary orders will automatically become permanent. So, if you are happy with your temporary order, you may not want to schedule a permanent hearing, but if you are unhappy with your temporary order and you would like a “do over” you will need to schedule a permanent hearing. Once a permanent order is granted – it is generally long-lasting and if you ever want to change that order, you would need a substantial change in circumstances to do so. The standard for changing a permanent order is much higher than is the standard in a temporary or permanent hearing. Therefore, if you receive notice that there will be a custody hearing – you need to show up! If you do not show, the judge will likely grant the other party what they are asking and if you try and come back later to sue for modification, you are much less likely to be successful. Changing permanent orders and litigating permanent orders can be very complicated and should be handled by attorneys. Custody is too important to risk. I pride myself in handling high-conflict custody cases as a regular part of my practice. I am also divorced with two daughters and understand how challenging and emotionally draining custodial exchanges and visitation can be. If you are going through a straight forward custody issue and prefer an attorney with personal experience who uses flat fees rather than hourly billing or you have a complex case and you want someone who will advocate for you and your children, contact me today to get started.
Parenting Agreements – If you think that you and the other parent can work out an agreement for custody and have an amicable relationship, you can enter into a contract or parenting agreement together. Parenting agreements are like separation agreements but only deal with children and custody. You may also enter into a separation agreement and make custody a part of it. This is certainly a more efficient, cost-effective way to handle your custody issues and is far less stressful than filing a lawsuit. Many parents get so caught up in seeking revenge or getting back at the other parent that by the time the custody lawsuit is over they may have exhausted their retirement, their savings, and their children’s college funds and they aren’t happy with the outcome of the case to top it all off. We are happy to help you with your parenting agreement. Forms are available for download on our website that will help you get started.
Domestic Violence and Custody – If you suffer from domestic violence in your relationship and you have children, you may need to file for an order of protection from your abuser prior to filing an action for custody. It is very likely that if you are in an abusive relationship that your partner will not enter into an agreement with you as they will see this as conceding control. It can take months from the time of filing a custody action to actually obtain an order, so if you and your children are in danger you will need to go to your local courthouse and ask to file for a domestic violence order of protection first. Please see the Domestic Violence link for forms and information on filing and resources. Once you file – an ex parte order will be put into effect – which will generally give you around ten days of protection before you have a hearing to request that the order stays in effect for one year. You may request at both hearings that the judge also issue protection for the children. Depending on the allegations and evidence, the judge may grant you sole custody of the children with no visitation to the defendant or the defendant may receive some visitation. Many times visitation is supervised or infrequent. It is important to file a custody action soon after receiving an order of protection so that when it expires, you have something more permanent in place to protect your children. Also, a Chapter 50 – custody order will trump your 50B domestic violence protection order, so if your abuser is the first to file a custody action, he or she may end up getting more time than the protective order originally granted. Child Protective Services will automatically become involved if you have a domestic case involving children, so don’t be alarmed if you are contacted by CPS. See an attorney right away if you are having custody and domestic violence issues.
Mediation – You and your partner may also choose to hire a private mediator to help you work through your disputes. Mediation is becoming more and more popular as a means to resolution. Mediation is voluntary, which means if you do not agree with the final outcome, you do not have to sign anything nor are you obligated to anything except maybe to pay the mediator that you hired. The mediator is unbiased, however, and will help you and your partner meet your objectives without taking sides. Mediation can achieve a much more peaceful resolution to custody disputes and cost a lot less than litigating. Mediators can range from $150.00 an hour to $350.00. How long it takes will depend in part on you and your partner, but for the most part, it can be handled in just a few hours. You are free to also hire an attorney and bring an attorney with you. You will have to pay the attorney for their time as well. There are many mediators who are also attorneys, and will advise you as you go through mediation, thus, you may not need to hire your own attorney further decreasing your costs. The benefit of private versus court-ordered mediation is that you will likely not be in the same room as your significant other. Whether you choose a private mediator or participate in court-ordered mediation, once a lawsuit is filed, custody mediation is required in North Carolina.
Mediation may be waived if you have a domestic violence protective order in place, one of the parties abuses drugs or alcohol, one of the parties’ lives far away, or mediation is burdensome in some way. You must file to become exempt from mediation or may face sanctions for failure to comply with court rules. Before you ever have a hearing for custody, you will be scheduled for mediation orientation and then mediation with the court. This is a free service provided by the court system. Although mediation attendance is mandatory, again your agreement is not. If you do not agree to what is being discussed or offered in mediation, you do not have to settle. The mediator will inform the court that you were unable to reach an agreement and you will move forward with your hearing on custody. If you are able to settle, a mediation agreement will be signed by both parties and the mediator will file this with the court, which will take the place of your hearing, and will be binding on you and your partner. You will no longer have a hearing on custody but will have to abide by the terms of the mediation agreement or be subject to future litigation.