North Carolina Child Custody

Will my child have to speak in court?

In North Carolina, it is entirely the judge's discretion as to whether the testimony of the child will be in the courtroom or in camera. Typically, testimony of a child would be in camera.

Who will get custody of our children?

In North Carolina, there is no preferance for mother or father to obtain custody of your children. The standard for determination of custody is the "best interest of the child" standard. The judge uses this standard in its initial determination of custody.

Who decides a case if it goes to trial?

Either party can notice the court to have a claim for custody heard. Prior to that trial date, however, the parties must have participated in a mediation.

When can child custody be filed for or decided? Once child custody is agreed upon or ordered can it be modified?

If there is no order or agreement, a child custody claim can be filed at any time. Custody, by its very nature, is always modifiable. The standard for modifying terms of a custody order is for the movant party to show that there has been a substantial and material change affecting the best interest and welfare of the child.

What rights do grandparents have to custody and visitation in North Carolina?

If parties are in the initial stages of a dissolution of marriage or a separation or a dissolution of a relationship, it is a good time to enter into some sort of agreement that reflects the understanding of the parties as to a visitation schedule for the children involved. If they fail to do this now, it is likely that the longer they wait to enter into an agreement, the less likely it is that they will be able to come to a resolution. Placing terms into an agreement regarding visitation also makes the transition easier not only for the parents involved but also for the children.

What is visitation in North Carolina?

The term visitation is often coupled with the term 'custody'. Previously, when a court ruled on the issue of custody, the court would order 'custody' of a minor child to one party and 'visitation' of the minor child to the other party. Now, the court typically refers its custody determination in terms of primary and secondary custody where, depending on the circumstances, both parties are entitled to exercise visitation with the minor child.

What is the standard that guides the judge's decision?

In an initial custody proceeding, the standard is the "best interest of the child" standard. In a modification of custody, the standard is "a substantial change of circumstances materially affecting the best interests and welfare of the child."

What is joint custody? What is sole custody?

There is no definition for joint custody in North Carolina. Joint custody is however the parties define it. The parties may conclude that an every other weekend arrangement is a "joint custody" arrangement. For purposes of child support, a joint custody worksheet is if the parent with "visitation" has more than 123 overnights. Sole custody is when one parent has primary and exclusive care, custody, and control of the parties children.

What is a custody evaluation and when should one be conducted?

Either party can ask the court to have a custody evaluation. A custody evaluation is when an objective third party is paid to assess each of the parents in order to assist the court in making a determination as to custody.

What impact could my dating have on post-separation support and alimony?

It is likely that your dating will have some impact on child custody as it is often hard for hte parent who is not dating to deal with another party being responsible for their children. Additionally, it may have an emotional impact on your children as there is always an adjustment to be made if you were in a more traditional household. It is entirely up to the parent as to whether they should or should not date. I would encourage that party to seek advise from their counsel before making that decision if there is an ongoing lawsuit.

What impact could my dating have on child custody?

In the State of North Carolina, your spouse can bring a third party claim for criminal conversation against someone you are in a romantic relationship with up until the time of divorce. What this means is after separation from your spouse you still run the risk of your spouse citing marital misconduct if you are dating and having sexual relations with a third party. Although it may not be true that you are having sexual relations with the third party your spouse may cite marital misconduct as a defense against your claim for Post-Separation Support and Alimony. Furthermore your spouse might make an attempt to prove that this relationship existed at the time of your marriage and before separation.

What factors does a judge consider if we cannot agree on a custody arrangement and we have to go to court?

A judge will consider all factors. The judge must make the determination for custody based on the best interests and welfare of the child.

What can I do to improve my chances of gaining custody if I have not been a terrific parent in the past?

Get involved in the child's life. No one can ever change the facts of the past but they can attempt to be a better parent in the future. Get to know your child's teachers, principals, counselors, and coaches.

If my case goes to trial, who should my witnesses be?

Witnesses for trial should be the child's teachers, counselors, family members who have had the ability to have first hand knowledge of events, or religious figures that have been important in the child's life.

If I have custody will I receive child support payments?

Not necessarily. Simply by having custody the state does not automatically require child support from the other parent. Only a person with custody of a minor child has a right to seek child support but the person with custody must take affirmative action to seek child suport from the responsible parents.

If custody has to be enforced by civil contempt proceedings, can I receive attorney's fees?

You may be able to receive attorney's fees if you have requested the court for same in your motion for contempt.

If both parents share custody does anyone pay child support?

Both parents have a duty to financially support their children. Child support is based on a guideline amount provided by statutes. It is based on the parties gross incomes and their contributions for health insurance, day care costs, and any extra expenses paid for by either parent.

How will I present evidence if custody must be litigated in court?

Often, in a custody action, each party must show the court evidence that would assist a judge in making a determination as to the best interests of the child. Sometimes this evidence comes only through testimony of parents, family, and friends that are close to the children. Testimony may also come in the form of teachers, counselors, coaches, and other people who are involved in the children's lives.

How is child support determined?

In North Carolina, our courts are guided by an overall philosophy of equity in determining child support wherein the needs of the children as well as the lifestyles and ability to pay by the parents is considered. In order to expedite this process and create equity and fairness amongst all people seeking child support, the state of North Carolina has implemented presumtive child supprt guidelines. Guidelines are created by the conference of chief district court judges on at least a once every four year basis. The guidelines utilize a mathmatical formula which takes into account the adjusted gross incomes of the parents and creates a basic child support obligation. These guidelines create a rebuttable persumption and are typically used in almost all child suport cases.

Do children get to decide who they will live with?

In North Carolina, weight may be given to a child's preference for custody; however, it is in the Judge's sole discretion as to whether the child's testimony is on a witness stand or in-camera (in the judge's chambers). Some case law in North Carolina suggests that it may be appropriate for a child who is ten years old or older to assist the Judge in making a determination of custody.

Can I get a temporary custody order? What is an ex parte order?

In Mecklenburg County, the court rules on the issue of temporary custody only in limited circumstances. A party may be able to motion the court for a temporary parenting arrangement if there is a pending claim for custody. It is in the judge's sole discretion as to whether the claim requires a temporary parenting arrangement to be put in place. An Ex Parte motion is another way to obtain a temporary custody order. An ex parte motion is a motion made to the court without notifying the other party. 'Ex parte' is a Latin term meaning "on or from one party only, usually without notice to or argument from the adverse party." Typically, one party seeks an ex parte order if there are emergency circumstances such a risk to the child's physical, mental, emotional well-being or if the opposing party is planning to leave the state or North Carolina for the purpose of avoiding the jurisdiction.

Can I change my minor child's last name without permission from the other parent?

Unless the other parent has terminated his or her parental rights, you can not change a minor child's last name without the other parent's consent.

Can a parent refuse to allow visitation if child support is not paid?

A parent can refuse visitation; however, a parent should not deny visitation based on a failure to pay child support. Child support and custody should be separate issues.

Can a judge order no visitation or supervised visitation?

A judge can order supervised visitation. Typically, this happens in extreme circumstances that would include when there are allegations of physical, sexual, drug, or child abuse. When there are extreme circumstances such as these, a judge may order supervised visitation. Typically, supervised visitation is only for a limited amount of time. It is unlikely that a judge would ever refuse to award visitation to a parent.