Child Custody Issues in NC Divorce and Family Law
- How Child Custody is Awarded in NC
- The Child Custody Legal Process
- Types of Child Custody
- Visitation Rights
- Grandparents Visitation and Custody Rights
- Do You Need a Child Custody Attorney?
How Child Custody is Awarded in NC
Child custody arrangements determine how separated or divorced parents will share the rights and responsibilities of their children’s lives and welfare. The focus of a custody arrangement is always the best interests of the child.
In North Carolina, there is no presumption that the mother is a better parent than the father, children are not allowed to determine with whom they will live – although in some situations, the judge may consider the child’s preferences. Only children under 18 years of age are subject to custody arrangements unless they are disabled.
Either agreement is subject to approval of the court. If the parents cannot come to an agreement, the matter of custody is brought before a judge who decides the issues.
The Child Custody Legal Process
Usually, child custody arrangements are made voluntarily by the parents. The agreed-upon terms can be made part of their separation agreement or they can draft a separate parenting agreement. In either case, it is a good idea to obtain a consent order from the court to formalize the terms of the custody agreement. This can help to minimize future disagreements and makes enforcement of the agreement easier should that become necessary.
If the divorcing parents are unable to agree on terms of child custody, mediation may be a good next step – especially since mediation will be mandatory if a child custody lawsuit is filed. Mediation involves the parents meeting with a neutral mediator without their attorneys present. If the custody issues cannot be resolved with the mediator, a lawsuit will be filed, litigated and a judge will decide the terms of child custody.
Types of Child Custody
There are several custody designations – physical custody and legal custody, sole custody and joint custody, and emergency custody. The custody arrangement should be practical for both parents. Both parents should be able to have a steady, relevant presence in the life or lives of their child or children.
Physical custody indicates with whom a child or the children will physically live. Legal Custody indicates who has power to make decisions relating to the care and welfare of their child or children – such as medical and educational decisions, religious decisions and other decisions that come with routine daily living.
Sole custody gives one parent the authority to make all the decisions relating to their child or children. Sole Custody is rarely granted unless there is evidence of physical or sexual abuse.
Joint custody provides for both parents to share decision-making authority in all matters relating to their child or children, including physical custody issues. Most child custody arrangements are joint arrangements, whereby one parent has primary physical custody and the other has secondary physical custody.
Emergency custody is granted by the court if a child or the children are in danger of being physically harmed or sexually abused. It is also granted if there is a substantial likelihood a child or the children may be taken by one parent to another state to escape North Carolina court jurisdiction. Emergency custody claims are heard “ex parte” meaning the opposing party is not given notice of the hearing due to its emergency nature. However, the opposing party must be notice and an opportunity to be heard within a reasonable time.
The potential for abuse of these claims is great. The entry of an ex parte order can substantially prejudice the other party. Proving the need for emergency custody is a threshold not easily reached in most North Carolina counties.
One parent can be awarded more physical time with their child or children than the other parent. This is called primary custody. In this event, the parent with less time is awarded visitation. If there is a history of domestic violence or drug abuse, the abusing parent may be limited to supervised visitation or even no visitation.
Visitation is a way to maintain a healthy relationship between the non-custodial parent and his or her child or children. In North Carolina, unwed parents are viewed the same as married parents with respect to their rights to their children.
Grandparents’ Visitation and Custody Rights
Grandparents have only limited rights to visitation or custody in North Carolina. Generally, grandparent’s time with their grandchildren is derivative of the time the children spend with their parents – in other words, the grandparents visit with their grandchildren only during the time the grandparents are visiting with their grandchildren’s parents.
In regard to custody, grandparents are viewed as third parties and have no special standing. Therefore, in order to gain custody, the grandparents have to prove the parents are either unfit or have acted contrary to their legally protected rights as parents.
Greenville NC Child Custody and Family Law
Attorney Cynthia Mills
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