Mr. Sample is a non-custodial father looking for reasonable visitation with his daughter. The mother of his child largely dictates when he can see his daughter. She won’t allow extended visits and always has some excuse as to why his proposed scheduled won’t work, varying from conflicts with extracurricular activities to “pay your child support and then you can see your daughter.” Despite knowing he’s being treated unfairly, Mr. Sample either doesn’t want to risk losing all access to his daughter so he goes along with his co-parent’s decisions. He doesn’t believe court is an option as he’s heard judges just “side with the mother.”
Does Mr. Sample sound like you? If you know your rights you can avoid being this guy.
Parents Have Equal Rights in NC
While there used to be a strong slant towards mothers in child custody cases, in recent years that presumption has eroded. If both parents are fit, proper, and have an existing bond with the minor child, legally you have equal rights as a parent. A court must make custody determinations that are in the best interest of the child and studies are overwhelming that children thrive at higher rates when both parents are involved in their lives.
In order to order a visitation schedule, you must establish paternity. If you were married to the mother when your child was born then you are legally considered to be the father. If you were not married to the mother, you must establish paternity in one of the following ways:
Voluntary Affidavit of Parentage
A notarized affidavit signed by both you and the mother agreeing that you are the child’s father.
In a custody hearing, if the paternity is an issue a father can request genetic testing to establish paternity and enter an order reflecting the same. The parties can also stipulate or consent in an order to parentage.
Legitimation by Marriage
You can marry the mother after a child is born in order to establish paternity.
Standing alone, your name being on a birth certificate does not establish paternity. At birth you should execute an affidavit of parentage along with having your name on the birth certificate.
Legal Custody vs Physical Custody
It’s important to understand the distinction between legal and physical custody when negotiating your custodial rights, going into a custody hearing, or negotiating a consent order.
Legal custody governs who has the authority to make major decisions on behalf of the minor child, such as choosing health care providers and schools. If an order confers joint legal custody both parents have equal rights to make major decisions, absent a provision that gives primary decision making authority to one parent or the other. Otherwise, the parent granted primary legal custody has the final say on major decisions after consulting with the other parent. In rare cases, sole legal custody is awarded, in which the parent with sole custody has total control over major decisions.
Physical custody determines where the child physically resides from day-to-day. If one parent has primary physical custody, the child resides primarily with that parent. In sole physical custody cases, the child resides exclusively with that parent. Joint physical custody can mean that the parties share equal custodial time or that one parents has slightly more overnights than the other parent.
Mediation and Out of Court Settlement
As a father, if you’re not seeing your children you might feel compelled to agree to any time you can get. Be wary of what you are sign if you decide to settle your case. In many counties you must undergo custody mediation prior to having a hearing. If the result of your mediation or settlement discussion is a permanent order (not a temporary order) it should not be considered a “stop-gap” measure. Permanent orders are much more difficult to change than temporary orders. If you are considering consenting to a permanent consent order ensure that you can live with the custodial arrangement in that order for the foreseeable future.
It is a common provision in custody orders that a parent cannot schedule extracurricular activities that conflict with your custodial time unless you agree on the activity. This arises in many custody cases where one parent has enrolled the child in activities and won’t allow visitation during certain time periods because of the participation in the activity.
As with all of our guides they are not exhaustive and the way the law applies may vary depending on the facts of your case. If you have questions about fathers’ rights in North Carolina, contact us. While we attempt to resolve all cases as amicable as possible, we feel right at home in high conflict custody cases. We look forward to assisting you in solidifying the relationship with your children.
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