Child custody can be one of the most challenging issues to navigate during a divorce. It is often the most emotionally charged part of a case and can lead to extreme disagreements that do not work in anyone’s best interests, including the children.
To better acquaint yourself with how child custody works and perhaps stave off a lot of that conflict, here are several things you should know regarding child custody in North Carolina.
- Types of Child Custody in North Carolina
- How is Child Custody Determined in North Carolina?
- The Best Standards of the Child Standard
- Factors a North Carolina Judge Uses to Decide Custody
- What is a Parenting Plan in North Carolina?
- Modifying an NC Custody Order
- North Carolina Custody and Visitation FAQs
Types of Child Custody in North Carolina
North Carolina recognizes legal custody and physical custody.
Legal custody is the right to make significant decisions about the child. Physical custody means the right to have the child in your physical care, either all the time or part of the time.
In addition, each can be decided as sole custody or joint custody.
A parent with sole legal custody can make major decisions about the child’s life without consulting the other parent. If parents have joint legal custody, they must consult each other and jointly make major decisions, such as where the child will attend school, religious upbringing, or issues regarding healthcare.
Sole physical custody means that the child lives with one parent only, though the child may visit with the other parent. Joint physical custody means the child’s time is split between the parents.
One parent may be awarded primary physical custody, meaning the child lives with that parent most of the time, while the other parent has secondary physical custody and visitation rights spelled out in a parenting plan.
What is an emergency custody order?
An emergency custody order sometimes called an “ex parte order,” is an immediate, short-term custody order that a judge can grant under limited emergency circumstances.
Grounds for granting emergency custody include situations when a child is at substantial risk of bodily injury, sexual abuse, or removal from the state to avoid the authority of North Carolina custody laws.
If an emergency custody order is granted, a hearing must be scheduled so that both parties have the opportunity to be heard.
What is the difference between temporary and permanent custody orders?
Judges may enter either temporary or permanent custody orders. For example, a divorce can take a long time to resolve, and temporary child custody can be put into effect until the judge holds a new custody trial to decide whether to modify the temporary order or enter a permanent one.
Temporary orders may be entered to address other situations such as:
- Provide continuing stability in a deteriorating situation
- Preserve the status quo
- Prevent a child’s removal from the jurisdiction
- Return the child to an appropriate custodian
- Protect the child from harm, neglect, or abuse
Temporary custody orders are legally binding, just like permanent orders. They can become permanent if neither party requests another hearing for an extended period of time.
What are my rights if I’m in the military?
Specific laws govern the rights of active-duty military members. If you can’t attend court due to your active-duty status, you can request the court case be put “on hold” until you return.
Emergency temporary orders may be entered ex parte upon a verified pleading or affidavit. “Ex parte” means that only one side tells the court its version of events because the other side has not yet been allowed to address the court.
Read More: How to File For Divorce in North Carolina
How is Child Custody Determined in North Carolina?
North Carolina General Statutes sections 50-13.1 through 50-13.9 and Chapter 50A of the statutes provide the parameters for judicial actions regarding a child custody case.
Any parent, relative, another person, agency, organization, or institution claiming custody of a minor child may bring an action in court. You must file a complaint to ask a court for a child custody order. Your lawyer can file the complaint for you, or if you do not have a lawyer, you can file a complaint yourself.
Third parties, such as grandparents, relatives, or others who have cared for the child, can file for custody or visitation under some circumstances. To obtain custody, non-parents must prove that the parents are either unfit to care for the child or have not acted under their rights as parents.
Child custody cases must be filed in the child’s “home state,” which is the state where the child has lived for the six months before the case is filed. If you had a previous custody case about the same child in a different state, you generally must return to that state to change your custody order as long as one of the parties still lives there.
In North Carolina, you can file a custody case in the county where the child resides, is physically present, or in a county where the parent resides.
After filing a case, a summons and complaint are served on the other parent, generally either by the sheriff or certified mail.
Most times, before a judge can hear your case, it will be sent to North Carolina’s Custody Mediation Program. In mediation, a neutral third party will attempt to resolve issues between parents and reach an agreement with their approval. If parents can’t agree, the judge will hear the case at a trial in which you both have the opportunity to testify and call witnesses.
No presumption favors one parent over the other based on gender. Mothers and fathers are given equal consideration.
However, many North Carolina judges tend to favor the mother of young children, especially when the mother has been the children’s primary caregiver since the beginning.
Read More: North Carolina Divorce Laws
Can a judge order supervised visitation or no visitation?
Yes, a judge can order supervised visitation or deny visitation altogether if they determine that one parent is unfit or has acted in a way that is inconsistent with their parental status. For example, a parent may be abusive, suffer from drug or alcohol abuse, or engage in criminal activities.
What about using a Guardian ad Litem?
A Guardian ad Litem is an attorney appointed to be the child’s attorney and speak on behalf of the child’s best interests. They can gather evidence, interview witnesses, and do onsite visits before presenting their findings to a judge in the case.
The judge can appoint an evaluator on their own, or you can petition the court to appoint one on behalf of your child.
The Best Interests of the Child
This is the dominant guiding principle in all North Carolina child custody actions. By statute, custody will be awarded to the person or institution who “will, in the opinion of the judge, best promote the interest and welfare of the child.”
This language gives the judge a wide range of discretion regarding the factors the court considers and the weight the judge assigns to each of these factors.
Factors a North Carolina Judge Uses to Decide Custody
Trial court decisions on NC custody and visitation issues depend upon each case’s unique circumstances. However, a judge will evaluate the following factors before reaching any decisions:
- each parent’s relationship with the child
- each parent’s physical and emotional health
- each parent’s ability to provide the child with stability
- each parent’s willingness to foster a relationship between the child and the other parent
- the child’s relationship with each parent and ties to siblings and extended family members
- the child’s wishes regarding custody, if sufficiently mature
- the child’s ties to home, school, and community
- the child’s special needs, if any
- either parent’s history of domestic violence or abuse, and
- any other factor relevant to the child’s best interests.
There’s no preference for mothers over fathers in a custody dispute in North Carolina.
However, a parent with a history of domestic violence, abuse, or neglect may be subject to limits on their custody rights. This does not automatically deny a violent parent visitation with the child. Instead, a judge may order supervised visits to ensure the child’s safety while in that parent’s care.
What is a Parenting Plan in North Carolina?
A parenting plan is an agreement that lays out specific actions and responsibilities for each parent in a custody case. The most important of these is visitation by the non-custodial parent. However, a parenting plan will cover all aspects of a child’s life and is the legal document that must be adhered to after it is finalized.
Parenting plans also typically include the following directions:
- A schedule that describes the children’s physical custody
- A schedule that describes the daily responsibilities of each parent and the practical considerations of the children’s daily lives
- A description of each parent’s decision-making authority, including specifics on healthcare, education, religious upbringing, etc.
- A plan for resolving disputes
- Remedies if a parent fails to comply with the parenting plan
- Who will provide health insurance for the children
- Which third parties may or may not visit and communicate with the children
- How will the parents communicate with each other and with the children
- Procedures for transportation, overnight transitions, and drop-offs
Parents can create a plan independently, use a mediator or attorneys, or the court will make decisions when these other options do not produce results.
Regardless of who prepares the plan, the court has the final say in approving the plan, which is always governed by a child’s best interests.
Modifying a Custody Order in NC
Situations change, and the parameters that govern an original custody order often become less than ideal over time. If you think this is the case, you can petition the court by filing a Motion to Modify.
When you file a Motion to Modify, you must prove that there has been a substantial change in circumstances since the court’s initial determination and custody arrangement order was entered.
In addition, the filing parent must also establish those changes are affecting the child in a way that requires the old order to be changed to serve the child’s best interests.
A material change in circumstances may include a physical move, the onset of a chronic illness, a parent who starts abusing drugs or alcohol, or other similar impactful situations.
Either parent can bring claims or motions for child custody and visitation at any time before a child turns 18.
Parents may agree to the change, but if they do not, a judge will hold a hearing and rule on the matter.
North Carolina Custody and Visitation FAQs
What is the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)?
North Carolina has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to combat parental kidnapping undertaken to seek a new custody decree in another state.
The UCCJEA is a set of standardized jurisdiction and enforcement rules that all states have adopted.
It provides four bases for jurisdiction over North Carolina child custody matters per statute.
North Carolina has jurisdiction if:
- It is the state in which the child lived for the six months immediately before the custody proceeding (the home state), or if the state had been the home state and the child is now absent because the individual seeking custody has removed them
- It is in the child’s best interest because the child and one or both parents have a “significant connection” with the state, and evidence relevant to the child’s present or future care, training, and relationships are available within the state
- The child is physically present in North Carolina and has been abandoned, or an emergency exists
- No other state would have jurisdiction under the UCCJEA, or if another state has declined jurisdiction, it is in the child’s best interest for North Carolina to assume jurisdiction.
What impact does a child’s preference have on custody arrangements in North Carolina?
NC child custody laws provide that the wishes of a child of “sufficient age to exercise discretion” are “entitled to considerable weight” in a custody case. However, this input is only advisory, and a judge still has sole authority to decide the child’s best interests.
Does one parent still need to pay child support if both parents share custody?
The two are separate matters in North Carolina. Regardless of the custody situation, if a parent has been ordered to pay support, it is a legally binding court order that must be followed. The amount may be influenced by 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, if there are any extraordinary expenses, and other possible factors.
Read More: Alimony in North Carolina
What are the laws about moving with a child in or out of state in North Carolina?
If the move impacts the other parent’s rights, the parent seeking the move must ask permission from that parent. If the parent denies the requested move, the moving party can petition the court for approval to move. The judge will decide if the move is in the child’s best interests and rule accordingly.
Do grandparents or other third parties have custody rights?
Grandparents and other third parties have custody rights if they can justify that both parents are unfit or have acted in some other way that is detrimental to their parental duties.
A grandparent can ask the court to grant them visitation rights only when there is 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.
If grandparents intervene, they must prove their actions are in the child’s best interests and that they have visitation rights.
How are custody orders enforced?
You can file a Motion for Order to Show Cause or Motion for Contempt with the court. This asks the judge to hold the other parent in contempt of court for violating the order.
Custody orders are enforceable by civil contempt proceedings. Civil contempt can also be used as an enforcement measure during the pendency of any order for custody appeal. Disobeying a court order can also result in criminal contempt proceedings.
If the judge finds that the other parent violated the order, the judge will decide the appropriate penalty. Penalties for contempt of court can include a verbal reprimand, a fine, jail time, or requiring the party in contempt to pay the other party’s attorney’s fees.
Parents can’t refuse to allow visitation if child support isn’t paid. When this happens, the parent seeking support should 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 not incorporated into a court order, you would have to Motion the Court to require the party to pay child support.
