Child Custody

There is no more important family law matter than the custody of a child.

The best interests of a child are always the critical consideration in any custody matter. We hope this article will educate you and address your questions and concerns about your child’s custody.

Types of Child Custody in North Carolina

When addressing child custody, there are two types of custody to consider:

1. Legal Custody refers to the right and responsibility of parents to make decisions with important and perhaps long-term implications for a child’s best interests, such as education, health care, discipline, and religious decisions. If a parent has sole legal custody, then that parent has the final say on major decisions for a child. However, if parents have joint legal custody, they share the responsibility of making major decisions (often called co-parenting). When it becomes apparent that the parents cannot make these decisions together, a court may give legal custody to one parent or divide certain decision-making rights between the parents. 
2. Physical Custody is the day-to-day care and decisions for the child when in that parent’s custody. Parents may share physical custody, or one parent may be awarded primary custody and the other parent awarded secondary custody in the form of visitation. In extreme cases where one parent is unfit to have custody of a child, the court will generally grant one parent sole custody. Basically, physical custody addresses which parent will have overnight custody of a child.

The particular custody arrangement (legal and physical) must promote the best interests and welfare of the child.

What are the ways to address child custody in North Carolina?

Parenting Agreement

A Parenting Agreement is a contract between the parents that may address both custody and child support. More on Parenting Agreements below. Parenting Agreements may also be included in a Separation Agreement for divorcing spouses. 

Mediation

Whether you are in custody negotiations or in a lawsuit, mediation is an opportunity to come together with the other parent in an attempt to reach an agreement. Mediation is often an efficient and cost-saving alternative to a lawsuit. In private mediation (not required by the court), a mediator—a neutral attorney or retired judge—assists in reaching a settlement. If a lawsuit has been filed, then the court will require the parents to attend custody mediation sponsored by the State of North Carolina, unless the parents desire and consent to private mediation. In either case, mediators may not force parents to come to an agreement.

Arbitration

Although seldom used for custody matters, arbitration is another option. Arbitration is conducted by a single arbitrator or a panel of arbitrators (usually experienced family law attorneys) who act as the “judge” and are paid for by the parents. The decision of the arbitrator is binding in most instances.  However, both parents must agree to attend arbitration. Arbitration is usually less expensive and leads to a faster resolution than a lawsuit, and it allows you to keep the proceeding private, which a lawsuit does not.

Lawsuit

If no agreement is reached, then filing a lawsuit for child custody may be the only option.

The Parenting Agreement

A Parenting Agreement comes with several benefits. A Parenting Agreement may remain a private contract or be incorporated into a court order, but it may only become a part of the order if the parents agree.

A Parenting Agreement is cost-efficient, offers more flexibility around a family’s specific schedules and goals, and may offer unique custody solutions that you likely will not receive from a court. Also, by keeping the Parenting Agreement private, the Agreement does not become a court order that is available as a public record.

Incorporated Parenting Agreement

Incorporation of the Parenting Agreement into a court order offers certain legal protections that the agreement otherwise would not. A Parenting Agreement becomes incorporated if the parents agree that it will become a part of a court order in an existing lawsuit or by filing what is called a “friendly lawsuit,” the sole purpose of which is to make the Parenting Agreement a part of a court order.   Once incorporated, the Parenting Agreement will become an order of the court, which has legal consequences: 

• It’s enforceable by the court’s contempt powers. This means that a court may force a parent to comply with the agreement so long as the parent has the ability to comply. In some cases, a parent may face jail time for failure to comply with the order. 

• It may be modified upon the showing of a “substantial change in circumstances.” A change in circumstances may be a good or a bad change.

On the contrary, a private unincorporated parenting agreement may not be enforced by contempt and may not be modified absent agreement by both parents.

However, it is important to understand that even if the parents elect to keep the Parenting Agreement a private contract and out of the court’s hands, parents may never deprive the court of its ability to enter child custody orders if a lawsuit for child custody is filed. In other words, courts are not bound by a Parenting Agreement if a dispute arises, and the court may determine that the provisions of the Parenting Agreement are not in the best interests of the child.

What should be addressed in a Parenting Agreement?

Physical Custody

Physical custody should be addressed after the parents have agreed on legal custody. A physical custodial schedule for the child (i.e., the day-to-day schedule, holidays, birthdays, etc.) should be addressed. The schedule will likely depend on where the parents live, the child’s age, the custodial schedule of siblings and stepsiblings, and family traditions. High conflict cases may require exact details, expressly providing for exact visitation days, drop-off times, and locations, etc. 

For more information and guidance on negotiating holiday schedules, view our article: And a Partridge in a Pear Tree: Navigating the Holidays as a Blended Family.

Legal Custody

Parents should first determine who has legal custody (i.e., decision-making authority). The Parenting Agreement may simply provide that both parents share legal decision-making authority, and also should address what happens if the parents disagree on major decisions, in other words, a tiebreaker. The tiebreaker may be a parenting coordinator, therapist, or other individual whom the parents trust and respect. In cases where parents cannot agree on major issues, A third party may be necessary to assist with these decisions, or legal decision-making authority may be granted solely to one parent or divided between the parents. 

For more information on legal custody, visit: When Co-Parenting Fails: How Courts Decide Legal Custody Disputes.

School Enrollment

School enrollment may also need to be addressed, especially if the child will be residing in two school districts. We addressed this important issue in Domicile for Public School Enrollment Under Joint Custody in NC.

Health Care Decisions

Parents do not always agree on health care decisions for a child, especially when a child has a mental or learning disability. If you anticipate disputes regarding the child’s medical or psychological care, a Parenting Agreement should grant decision-making authority to one or the other parent, providing that either parent will follow the advice of a child therapist or counselor or that another person will serve as the tiebreaker.

Restrictions or Limitations on Custody

Restrictions such as supervised visitation, a child’s cell phone use, and mental health treatment may be addressed in a Parenting Agreement. The need for alcohol monitoring or drug testing of a parent and exposure to romantic partners may also be appropriate provisions to include in a Parenting Agreement. 

Child Support

 If the parents decide to address child support in the agreement, they should include various matters such as a monthly payment schedule, who is responsible for providing healthcare insurance (if available), and payment of uninsured medical expenses, and dental expenses.  Additionally, other provisions may include the payment for extracurricular activity expenses, tutoring, and other educational expenses. You may also need to address the parent who is entitled to claim child tax credits.

College Expenses

Many parents ask whether they should include provisions requiring a parent to contribute to a child’s college tuition and expenses, either directly or through a 529 college savings plan. While a court does not have authority to force either party to pay for these expenses, parties may address this issue by agreement. Whether these provisions are appropriate depends on the particular financial and other circumstances of each case.

Miscellaneous. There may be many other issues that need to be addressed in a Parenting Agreement based on the needs of your family. Consultation with an experienced family law attorney is crucial to ensure that your Parenting Agreement includes all necessary terms to protect your child and ensure a smooth transition between households.

The Child Custody Lawsuit in North Carolina

How do I initiate a child custody lawsuit in North Carolina?

If you cannot agree on the custody issues, you may file a lawsuit for child custody and request sole or shared/joint legal and physical custody. Depending on the circumstances of your case, you may also ask for child support and attorney’s fees to be paid by the other parent.

If there is a reason for the court to address custody quickly, you may request the Court for an immediate hearing on temporary custody. And in a situation in which the child is in danger of immediate harm, you may be entitled to have an emergency hearing without the other parent or an attorney being present.

Temporary custody hearings are limited in time and are often heard solely on party testimony and, possibly, affidavits of third parties.  A temporary custody order usually remains in effect until a full trial is held on permanent custody. However, temporary orders may become permanent under certain circumstances, so it is important to consult with an attorney.

At age 18, a child is legally an adult.  The courts no longer have the ability to order custody or visitation, and do not have the ability to force the adult child to obey a previous custody order or agreement, even if the order or agreement requires the parents to continue some performance past the child’s eighteenth birthday.

Who may initiate a child custody action in North Carolina?

Generally, it is a parent who may start a lawsuit for the custody of a child. In some limited situations, a person with a special relationship with the child (such as a grandparent) may be allowed to file a custody lawsuit. Parents have a constitutional right to the exclusive care, custody, and control of their children. Therefore, in order for a court to consider the best interest of a child between a parent and a nonparent, the court must find that the biological parents have waived their constitutional rights by engaging in certain conduct which shows that the parent has not acted in the best interest of the child.

Between parents, it used to be presumed that the mother is the parent who should have legal and primary physical custody of the child. That is no longer the case. There is a growing trend that both parents are equally fit to have custody and that both should have shared or joint legal and physical custody.

How is custody determined between parents who are not married? 

In North Carolina, the determination of parental rights and responsibilities is somewhat different for unmarried fathers. For married couples, the husband is presumed to be the biological father of the child, and his name is automatically listed on the child’s birth certificate. If the parents are unmarried, that is not automatically the case.

So, what steps may a father who is not married to the mother take to ensure his rights to custody of a child in North Carolina? Where paternity of the child is not at issue, the father may establish paternity voluntarily at the hospital or by signing an Affidavit of Parentage. When paternity is disputed or not established, additional steps are necessary.

For more information on this topic, review our article: The Changing Landscape of Unmarried Parents. 

Once paternity is established, custody will proceed basically in the same manner as it would for married couples.

What factors will the court consider in awarding custody in North Carolina?  

The court will award legal and physical custody to the parent who will best promote the best interests and welfare of the child. In doing so, the court must determine the environment that will “best encourage full development of the child’s physical, mental, emotional, moral, and spiritual faculties.”

Simply put, custody should be awarded to the parent who will best meet the present and future needs of the child. Of course, the court may determine that both parents will do so and award some form of joint or shared custody. In fact, it is important to understand that in recent years, many judges will grant joint legal and shared or equal physical custody unless facts are shown to the judge that it is not in the best interest of the child. In other words, the burden is on the parent who opposes joint legal and shared physical custody to prove that it is not in the best interest of the child. It all depends on the facts of your case as to whether the court will consider something other than joint and shared custody.

Relevant facts that a court may consider when  determining custody may include:

• historical caregiving responsibilities, parenting roles, and involvement in the child’s upbringing, considering, for example, each parent’s involvement in medical appointments for the child, planning and participating in activities for the child, and in the child’s education.
• a parent’s availability to care for the child on a day-to-day basis.
• the level of cooperation and/hostility between the parents.
• emotional stability and fitness of each parent.
• a parent’s ability to provide positive structure for the child.
• alleged acts of domestic violence between the parents,
• physical and mental health of a parent or child, and the relative age of the parents.
• parental alienation concerns.
• any other factor related to a parent’s character, personality, and conduct.

These facts, as well as others involved in your case, are relevant in determining both legal and physical custody. For more information on legal custody specifically, view our article: When Co-Parenting Fails: How Courts Decide Legal Custody Disputes.

For more information on school-related issues, read our article: Domicile for Public School Enrollment Under Joint Custody in NC.

What evidence is helpful to prove the best interests of the child?

In North Carolina, there is no presumption between mother and father as to who will best serve the interests of the children. The trial court must decide based on all the evidence presented.  Evidence commonly used in a child custody trial includes:

• Testimony from parents and  witnesses
• Academic Records
• Medical Records, including mental health records when at issue
• Social media posts
• Voicemails and emails
• Text messages
• Communications with third parties, such as grandparents
• Legally obtained audio recordings of a child and parent (more on this below)
• Photographs

May the child testify in North Carolina?

Possibly. Many times, parents ask, “Well, what about what my child wants?” Testimony of a child may be considered in some circumstances discussed in more detail in our article: Living Preferences of Minor Child in NC Custody Cases.

However, children rarely testify in court. Attorneys and the courts are hesitant to hear testimony from the child due to the possible psychological impact on the child. If the parents agree during a custody hearing, a child may have a private conversation with the judge concerning the child’s wishes and concerns, but the judge has to agree to allow it as well. But in any event, before a child will be allowed to testify or speak with the judge, it must be shown that the child is old and mature enough to express his or her true wishes and concerns. There is no magic age (such as 13 years old) that the child must be to be qualified to participate in the custody hearing.

May my child’s therapist testify?

Yes, if ordered by the judge. A privilege exception exists between a psychologist and client or patient, which allows the psychologist to refuse to disclose any information that he or she may have acquired in the practice of psychology, but the judge may allow the therapist to testify if the testimony may assist the judge in determining what is in the best interests of the child.

Are acts of domestic violence relevant to my case?

Yes. N.C. Gen. Stat. § 50-13.2(b) provides that if the court finds that domestic violence has occurred, the court shall enter such orders that best protect the children and the party who was the victim of domestic violence. Certain limitations may be placed on an abusive parent’s custody rights to ensure a safe environment, including supervised visitation.

May I record a child or co-parent in North Carolina?

Yes, in some circumstances. Generally, in North Carolina, it is a felony when a person, without the consent of at least one party to the communication, willfully intercepts, or endeavors to intercept, any oral communication under the North Carolina Electronic Surveillance Act. However, a custodial parent may record the child’s phone or electronic (such as Facebook) conversation if the parent has a good faith and reasonable objective belief that recording the child’s conversation is in the child’s best interest. And a parent may record the other parent, so long as the recording parent is a party to the conversation..

What should I do if alcohol or drug abuse, or mental health concerns are present in my case?

Where illegal drug and excessive alcohol use are issues in your case, you may need to ask the Court to order the other parent to take a drug test or perform video alcohol monitoring before and even during visitation with the child. When a parent suffers from severe mental health issues that can affect their parenting ability, a court can also order a psychological examination of the parent

May I ask for emergency custody at the same time I file my custody action?

Yes, in certain limited circumstances. Courts may enter immediate emergency orders for custody if the court finds that the child is (1) exposed to a substantial risk of bodily injury or sexual abuse or (2) 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. Whether or not a court will enter any emergency custody order will depend on the facts of your case. You should consult with an experienced family law attorney, if at all possible, to determine whether you should seek emergency custody.

In which State do I file a claim for child custody if the other parent is not living in or has left North Carolina?

Given the mobility of today’s society, the need to determine which state has jurisdiction to hear child custody matters has become common. The North Carolina Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) governs when North Carolina has jurisdiction to decide child custody issues. Jurisdiction refers to the court’s authority to hear a child custody lawsuit.

Filing a Custody Lawsuit for the First Time

An initial child custody action must be filed in the child’s “home state.” The home state is the state in which the child has lived for at least six (6) consecutive months prior to the filing of the lawsuit. If the child is under six months old, it is the state in which the child has lived since birth.

Let’s look at an example:

Ten-year-old Lauren has lived in North Carolina for three years. Her mother relocates to Florida and takes Lauren with her. Four months after moving to Florida, Lauren’s mother attempts to file a custody  lawsuit in Florida. Father remains in North Carolina.

In this example, North Carolina is the home state of the child, since the child lived in North Carolina for six months prior to initiating the lawsuit, and her father remains in North Carolina. She has only lived in Florida for four months. Had Lauren and her mother lived in Florida for six months and a day, then the lawsuit would need to be filed in Florida. Likewise, Lauren’s father may file a custody action in North Carolina even though Lauren is no longer living here.

It is important to realize that once a parent relocates out of the state with a child, the six-month clock starts ticking. If the child resides outside of the state for a day beyond the six-month period, then North Carolina will lose jurisdiction to hear the custody lawsuit, and you will be litigating the case in the new home state.

Temporary absences from the state, however, will not affect the six-month rule. What is considered a temporary absence is decided on a case-by-case basis, and any absence nearing a six-month period should be discussed with your attorney immediately.

If the child and both parents no longer reside in the initial home state after the filing of the lawsuit, then there are several factors that will be considered by the court in determining the appropriate court to hear the dispute.

The court in the initial home state could either agree to transfer the case to the state in which the parents currently live or the initial home state could decide to enter a custody order.

Subsequent Custody Lawsuits

Once you have a child custody order, a parent may seek to modify the order at a later time. If both the child and the parents no longer reside in the initial home state, then the court that entered the initial order may lose jurisdiction to enter subsequent custody orders. The court will again need to determine the current home state of the child.

However, if one parent continues to reside in the initial home state, with or without the child, then the court in that state will continue to have jurisdiction to hear the case.

With all of this being said, if a child is located in North Carolina, home state or not, the court will have jurisdiction to enter temporary emergency orders. Whether they agree to do so is another matter, but it is possible when necessary.

Final Thoughts on Interstate Custody Lawsuits

Determining the Court’s ability to hear a child custody action requires a complex legal analysis, and many custody cases begin with a hearing on where the lawsuit should be filed. For more information, see our article on this topic: Determining Which State Has Child Custody Jurisdiction After Parents Relocate.

There are many twists and turns to the UCCJEA, and additional analysis may be required if, for example, a child is residing with a person who is acting as a parent or there really is not a state that qualifies as a home state. Additionally, parties cannot agree to a certain state having jurisdiction to hear custody matters if such an agreement is inconsistent with the UCCJEA. Consultation with an experienced family law attorney is crucial to determining where to file a lawsuit that crosses state lines.

Modification of Custody Orders and Parenting Agreements in North Carolina

May a parenting agreement ever be changed in North Carolina?

Yes, but only by an agreement. If a prior custody plan is in a private parenting agreement, you may attempt to re-negotiate with the other parent. If parents cannot agree to a modification, a parent may file an initial lawsuit with the court requesting a custody determination.

May an existing court order ever be changed in North Carolina? 

Possibly. To modify an existing court order, whether reached by consent or after a full trial, you must allege and prove a “substantial change of circumstances affecting the welfare of the child” since entry of the initial custody order. The evidence must illustrate a connection between the substantial change in circumstances and the effect of those changes on the welfare of the child. If the court finds circumstances have changed since entry of the initial custody order, only then will the court consider what is in the child’s best interest and decide whether the existing order should be changed.

What is considered a substantial change of circumstance in North Carolina?

Parents may introduce evidence to support an array of factors in changed circumstances. Once a substantial change of circumstance is established, the circumstance must have an effect (positive or negative) on the welfare of the child.

Examples when a substantial change of circumstance has been found include situations where:

• a parent has changed their living condition, work schedule, arrangements for the child’s care, and/or ability to provide a stable home environment since entry of the order, which would positively or negatively impact the child.
• a parent withholds the child from the other parent for an extended period of time without a compelling reason and that detrimentally impacts the child.
• a parent has exposed the child to unwholesome or unsafe environments, or has exposed the child to the parent’s drug and alcohol abuse.
• parents are unable to effectively communicate, and the frequent disagreement impacts the child.
• a parent refuses to provide necessary medical care.
• a parent’s relocation.

May I relocate with the child? 

Whether before or after a parenting agreement is signed or a custody order is entered, there are a number of facts that are considered if one parent wants to relocate with the child either within or outside the state. As with any custody matter, the best interests of the child are controlling. Facts to consider include:

1. The advantages of the relocation for the child;
2. The motives of the moving parent in seeking the move;
3. The likelihood that the moving parent will or can comply with the current custody arrangement or court order;
4. The reasonableness of the other parent in objecting to the relocation; and
5. The difficulty of establishing a custody schedule that will allow the other parent to continue to have a meaningful parental relationship.

If it is truly in the best interest of the child to move away from the other parent, there are numerous options available to ensure that the other parent will continue to have meaningful involvement with the child in order to maintain their relationship. Significant blocks of visitation with the child may be available that correspond with the child’s school schedule. For example, the other parent may have primary physical custody during the summer months and additional time for school holidays and vacations.  Additional expenses caused by the relocation may also be addressed, such as travel and hotel expenses, which will be incurred by the other parent for visitation.

Other Helpful Considerations and Tools in a Custody Case

What is a custody evaluation? Do I need a custody evaluation?

In some cases, it may be appropriate to engage a custody evaluator to help the court determine a custodial arrangement that is in the child’s best interests. The custody evaluator is a mental health professional (usually a psychologist) who makes an assessment of the parents and child involved, and then issues a report to the court, which includes certain findings and recommendations for the custody arrangement. During the evaluation, the evaluator will interview the parents, other persons such as family members and close friends, and will perform psychological testing of the child and parents. The evaluator may also review medical, school, and psychological records.  The opinions and recommendations of the evaluator are intended to give assistance to the court. The court may adopt all, some, or none of the recommendations.

Do I need a Parenting Coordinator in my custody case?

Parenting Coordinators (“PC”) may be helpful in high-conflict custody cases and may be appointed by the court when it appears that the parents have shown that, for whatever reason, they are not able to co-parent effectively. A PC may assist in resolving disagreements, including, but not limited to, custodial exchange times and locations, method of pickup and delivery, transportation to and from visitation, sharing of vacations and holidays, participation in daycare, bed time, diet, clothing, recreation, before/after school activities, extracurricular activities, discipline, health care management, education, as well as other areas designated by statute (N.C. Gen. Stat. § 50-92) or the parents. Recommendations and decisions of a  PC must be followed by the parents and are enforceable as an order of the court.

The court has the authority to appoint a PC without a request by a parent, a parent may request the court to appoint one,  or the parents may consent to the appointment. A PC must meet certain qualifications established by the law and is entitled to reasonable compensation from the parents.

What is parental alienation?

It is not uncommon for emotions to run high during and after a divorce. Situations do arise where, for whatever reason, one parent may attempt “to poison” the relationship between the other parent and child, and this may be successful in causing the child to not have a good relationship with the other parent or no relationship at all. This is called “parental alienation.” If parental alienation occurs, custody evaluators, professional therapists, and/or parenting coordinators are often engaged. If a parent is found by the court to have engaged in parental alienation, then that parent may face serious consequences, including the court awarding sole or primary custody to the alienated parent, limiting visitation with that parent, such as supervised visitation, and ordering that parent to undergo psychological therapy.

Who pays for attorneys’ fees in my child custody case? 

A court may award reasonable attorney’s fees to a parent who is acting in good faith and who cannot afford the expense of the lawsuit. The court determines the amount of the attorney’s fees and must also find that the other parent has the ability to pay the amount of fees. However, an award of attorneys’ fees is never guaranteed.

Why choose Ward and Smith?

Ward and Smith’s family law attorneys are highly skilled in every aspect of child custody matters. The section includes three senior litigation attorneys who are certified as family law specialists by the North Carolina State Bar. We understand that there is no legal matter more important than that of the custody of a child.

Our goal in your case is to resolve your custody matter on terms that you believe are in the best interests of your child and without having to engage in a lawsuit. However, we are prepared to protect your interests in a lawsuit if it becomes necessary. With offices in Wilmington, New Bern, Greenville, Raleigh, and Asheville, we are uniquely positioned and qualified to represent clients in all aspects of custody matters.