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Child Custody Basics

Basics of Child Custody in North Carolina

Whether you’re separated, divorced or have a child from a prior relationship, coming up with agreeable child custody schedules can be highly contentious.  When you are used to seeing your children and staying up to date about their day-to-day activities, reducing your time by 50% or more can seem unfathomable.  If one parent has concerns about safety, parenting abilities, or the associates of the other parent, it can complicate an already emotionally charged situation.

If you don’t have a custody schedule in a court order or parenting agreement you can run into problems when a co-parent is unreasonable.  Law enforcement typically won’t assist you in enforcing a custody schedule unless it’s contained in a court order.

In North Carolina, you don’t have many options in controlling custodial time with your minor child absent a court order.

If you feel like your parental rights are being ignored or minimized, filing for child custody may be your only option.  Whether you’re looking for representation or proceeding on your own, reviewing our guide can be the first step in protecting your relationship with your children.

Let’s start with some basic terminology that is common in child custody orders that parents should understand the meaning of

Legal Custody vs Physical Custody

Legal custody not defined specifically in the North Carolina General Statutes.  However, North Carolina case law holds that the parent with legal custody has a right to make long-term decisions in the best interests of their child.

Examples of decisions made by the parent with legal custody include:

  • education;
  • health care;
  • religious upbringing;
  • discipline and
  • other matters of major significance.

In most cases, courts will award the parents joint legal custody, which means the parents have to agree to make major decisions.  However, in situations where the parents can’t agree or one parent has a history of making decisions contrary to the child’s best interests, a court can allocate primary decision making authority within a joint legal custody framework.

What decisions each parent has authority over can also be defined specifically by the parties in a custody agreement or order.

Physical custody

Physical custody involves the care and supervision of a child.  The physical custodian can make decisions about a child’s day to day activities, but not matters with long-range consequences.

In a primary/secondary physical custody arrangement the parent with primary custody has the child in their care the majority of the time.  While in many joint physical custody cases the parties have an equal alternating schedule, it’s important to note equal custodial time is not a requirement.

Courts tend to clearly define physical custody schedules.  Common court order schedules include:

  • Alternating weeks
  • Every other weekend
  • Alternating 3 and 4 day blocks
  • Alternating 2 and 5 day blocks

 

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Orders that Result from Custody Matters

Temporary orders are entered in a variety of ways.  Generally when you file a custody action you are given a temporary hearing as it is the fastest way to get some visitation established.  This hearing is usually time limited to 2-3 hours.  In some counties you can present affidavits in support of your case in a temporary hearing.  The result of the hearing will be a temporary order.

Key characteristics of temporary orders include:

  • They cannot be appealed
  • They are often non-prejudicial (cannot be used against you at a future hearing)
  • It may not determine all issues important to your case.  (i.e., stop-gap measure)
  • You do not need to prove a substantial change in circumstances to change the order in a subsequent hearing.

Temporary custody orders can also result from a domestic violence restraining order and in emergency custody situations.  (Read our guide on DVPOs here)

Emergency Custody

We get many potential clients each year wishing to file for emergency custody for a wide range of reasons.  However, it is important to note that emergency custody is only granted in limited circumstances.  Judges would prefer not to enter emergency custody orders as they can be granted ex parte.  (i.e., without notice to the other party)  Often the court is presented with motions for emergency custody without a complete understanding of the facts of the case and therefore proceeding very cautiously.  If you are granted an emergency custody order, the opposing party is entitled to a hearing within 10 days in most circumstances.

In order to get an emergency order you must prove:

That the child is exposed to substantial risk of:

  • bodily injury,
  • sexual abuse, or
  • abduction or
  • removal from the state for the purpose of evading the jurisdiction of the court.

Mental anguish and psychological concerns are specifically not covered by the wording of the statute.  Furthermore, it can be difficult to discern whether a parent who is moving out of state with a child is doing so for the “purpose” of avoid jurisdiction.

Temporary orders not entered pursuant to a domestic violence restraining order can become permanent if neither party seeks another hearing over time.  There is no bright line that determines when a temporary order becomes permanent however.  If you’re unhappy with a temporary order you should seek a permanent hearing in a reasonable time as permanent orders are much harder to modify

Permanent Custody Orders

The biggest difference between temporary orders and permanent orders is that you must prove a substantial change in circumstances affecting the child’s welfare to modify permanent orders.  In other words, the judge must find factors that are different since the entry of the last order and how those factors have impacted the minor child.  Without this finding a court cannot change the permanent order.

Permanent custody orders are also appealable

Child Testimony

Has your child relayed information to you about the other parent that makes you question the child’s safety with the other parent?  Does your child prefer to live with you over their other parent?  Is your child the only person with firsthand knowledge of a violation of the court order by the other parent?

These are all common and predictable scenarios in child custody cases with children of appropriate ages.  What is not predictable is whether you can testify as to information you received from your child without calling them as a witness in your case

How does a child’s input on custody weigh in the decision making process?  If the child is of a suitable age, their preference is given considerable weight, however; it is not controlling.  A judge is not bound to order custody consistent with a child’s desires.  Determining what age is “suitable” is also not cut and dry and depends on the circumstances of the case and the child’s maturity.

Determining how your child testifies is a subject of frequent dispute.  We’ve had judge’ interview children in chambers alone or in the presence of attorneys.  Children can also testify in open court.  What is important to note is that a judge cannot interview a child in chambers without attorneys present in a child custody case unless both parties consent.

You must always balance whether having your child testify against the other parent is in the child’s best interest.  Many court orders have specific provisions about not putting children in the middle of custody disputes.  While such an order won’t prevent you from calling your child as a witness, make no mistake, a child as a witness is right in the middle of your case and it can have detrimental effects.

The Child’s Advocate

In Wake County an attorney can be appointed to represent your children in highly contentious cases.  The Child’s Advocate is a project of Legal Aid of North Carolina.  Legal Aid attorneys can be appointed to represent children in cases which involve:

  • Chronic conflict between parents
  • Neglect
  • Substance Abuse
  • Child Abuse
  • Domestic Violence
  • Continuing Litigation
  • Mental Illness
  • Children with Special Needs

The Child’s Advocate gives your children a voice and an advocate that can insure their preferences are presented in court.  Find out more by visiting the Legal Aid Website.

Jurisdiction and Initial Custody Determinations

In order to file your custody case in North Carolina you must establish it as your “home state.”  Generally, the child that is the subject of the custody case must have resided with you in North Carolina for at least six consecutive month prior to filing.  There are some exceptions to this rule including:

  • Emergency custody
  • Another state has declined to hear the case
  • Home state has been established, the child is no longer in the state, but a parent remains
  • The child is present but has been abandoned or threatened with mistreatment or abuse.

How Can I Prepare for Trial?

Preparation for a custody trial is key to obtaining favorable results.  You never know what piece of evidence a may impact a decision in your custody case.  It’s best for you to answer any questions you can definitively to eliminate reasons that would support a lesser custody award than you desire.  Here are some helpful examples of evidence that is easily obtainable or prepared that can impact the custody determination:

  • Pictures of your home and time you’ve spent with the kids
  • A plan of care for when you’re working or otherwise unable to care for your kids during your custodial time.
  • A plan of care for transportation of the children to key appointments
  • Research on desired schools
  • Report cards and other documents showing academic performance
  • Information about 3rd party caretakers and tutors (e.g., babysitters)
  • Emails, texts messages, and voicemails between you and the other parent
  • Any other physical evidence that supports your claims and testimony

Child custody matters don’t have to be contentious.  However, if you can’t come to a fair and reasonable custody agreement out of court, you want experienced litigators who feel right at home in a high conflict custody case.  Contact us when you’re ready to push back.

 

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