North Carolina Child Custody

If you're a parent facing a separation or divorce in North Carolina, you'll need to deal with all the questions around child custody: where your kids will live most of the time, how much time the other parent will have with them, and who will have the right to make the important decisions about their upbringing. And if you're already divorced, you may want to change your current parenting arrangements. Read on to learn how North Carolina custody laws address these issues.

Types of Child Custody

There are two basic types of child custody: legal custody and physical custody. Parents may share one or both custody types, or one parent may have sole custody.

Legal Custody

Legal custody involves the parents' rights to make decisions about important matters in the child's life, such as education, health care, and religion. Most of the time, parents will have joint legal custody, meaning they both have the right to be involved in these decisions. If they can't agree, they may have to return to court to have a judge decide for them.

A judge might award one parent sole legal custody when the other parent isn't fit to make significant decisions for the child—for instance, because of child abuse, severe mental illness, or serious substance abuse. Sole legal custody may also be the only practical solution when the conflict between the parents is so severe that they simply can't make decisions together.

Physical Custody

Physical custody refers to where the children live most of the time.

• When one parent has sole legal custody, the child or children primarily live with that parent, while the other parent will usually have visitation (more on that below).
• When parents have joint or shared physical custody, each of them will have their kids for a significant (but not necessarily equal) amount of time.
• In a split custody arrangement, each parent has primary physical custody of at least one of their children, with the siblings split between their parents.

How to Apply for Child Custody in North Carolina

When parents are filing for divorce in North Carolina, they'll typically request child custody in their divorce papers.

However, either parent may request custody in a separate proceeding anytime there isn't already a custody order in place—such as when they were never married or when they're separating. Because North Carolina law requires couples to live separate and apart for at least a year before they can file for divorce, they may need a judge to issue custody orders in the meantime if they haven't been able to reach a separation agreement (more on that below). (N.C. Gen. Stat. §§ 50-6, 50-13.1, 50-19 (2024).)

Generally, you may file a custody complaint in the county where the child lives or is physically present, or the county where you live. But you may file for custody in North Carolina only if your child has lived there with a parent for the past six months. There are complicated exceptions to this "home state" requirement, so you should speak with a lawyer if your child has recently been living out of state. (N.C. Gen. Stat. §§ 50A-102, 50A-201 (2024).)

Once you've filed your custody or divorce complaint, you'll need to have the paperwork served on the other parent, usually by a sheriff or certified mail.

Child Custody Agreements

You and your co-parent always have the option of agreeing on your parenting arrangements, whether in a separate custody agreement or as part of an overall separation agreement or divorce settlement agreement. Reaching an agreement is less stressful, less expensive, and better for the whole family than going to trial. If you're having trouble working out your differences, mediation might help (more on that below).

Your parenting plan should be as thorough as possible, including details of your parenting schedule and how you'll handle the child's transportation as well as any future custody-related disputes. (Learn more about how to create a custody agreement.)

You'll need to submit your signed, written agreement to the court so that a judge can approve it and make it part of an official order.

How Judges Make Custody Decisions: Child's Best Interests

If you and your co-parent can't agree, a judge will have to hold a hearing and make a custody decision that "will best promote the interest and welfare of the child."

Unlike many other states, North Carolina's custody laws don't spell out a long list of factors that judges must consider when they're deciding what's in the child's best interests. Instead, the law simply requires judges to consider "all relevant factors," including the child's safety and any domestic violence between the parents. As a practical matter, however, most judges will consider a wide range of circumstances that affect the child's best interests.

Does a Parent's Gender Matter in Custody Decisions?

North Carolina's custody laws don't give a preference to either parent based on gender. Historically, the law and courts presumed that young children should stay with their mothers (in what was known as the "tender years" presumption), but that was abolished in the late 1970s. Since then, appeals courts have overturned custody decisions by judges that were based on the principles underlying that outdated doctrine. Instead, judges must evaluate both parents equally, based on the specifics of their parenting skills and relationship with their kids. (Greer v. Greer, 624 S.E.2d 423 (N.C. Ct. App. 2006).)

Still, when judges are deciding what custody arrangements are best for children, they might consider the parents' history of taking an active role in their kids' lives and daily parenting duties. So when mothers have been the primary caregivers for their children, that may work in their favor. More and more, however, the trend is for parents to share custody. (Learn more about whether women get custody more often than men.)

Will My Child Have to Speak in Court?

Courts have long held that judges may—but aren't required to—consider children's preferences during custody proceedings in North Carolina if both parents are equally fit. But it's up to the judge to decide whether to hear what a child has to say on the matter and whether a child will testify in court. Most judges try to avoid putting a child on the witness stand. Instead, they may interview the child in the judge's chambers. Or they might learn about the child's preferences through a custody evaluator's report (more on that below).

What Is a Custody Evaluation?

When there's a custody dispute, judges may order a custody evaluation. Along with the findings from the evaluation, the expert's report may include recommendations for custody and parenting time. The judge doesn't have to follow the evaluator's recommendations, but they'll usually carry a lot of weight.

Either parent may ask the judge to order an evaluation. Parents may also hire their own evaluators if they don't trust the one appointed by the court.

How Can I Improve My Chances of Getting Custody If I Haven't Been a Great Parent in the Past?

Your past won't necessarily define you in a custody case, but you'll have to show a judge how you've changed. If you've been a mostly absentee parent, you'll need to get involved in your child's life as soon as possible. That includes daily child-rearing tasks like getting your child ready for school in the morning and for bed at night, helping with homework, and taking your child to school and after-school activities. If work or other obligations have prevented you from taking on these responsibilities in the past, be prepared to show what you've done to change that situation.

If you've been a poor parent because of substance abuse issues, you'll have to show that you've received treatment and are prepared to tackle the responsibilities associated with parenting. You can also take parenting or anger management classes if that's appropriate.

Visitation Rights in North Carolina

Even when one parent has sole or primary legal custody, the other parent will usually have visitation rights (also known as parenting time). The court's custody orders or the parents' agreement will spell out how often and when that parent will see the kids, along with other details like transportation.

Judges may allow electronic visitation (such as by phone or video calls). For example, that might be appropriate as a supplement to in-person parenting time because of busy schedules and distance.

Judges will rarely cut off a noncustodial parent's contact with the child completely. If there's a history of abusive behavior, substance abuse, or other behavior that might endanger the child, the judge may order supervised visitation or virtual visits. A judge may also prohibit a parent from consuming alcohol (and submit to monitoring) as a condition of visitation. In extreme circumstances, a parent may lose all visitation rights. Even then, parents may usually regain these rights once they prove they've addressed the problematic behavior.

In some circumstances, judges may also award visitation rights to a child's grandparents in North Carolina.

(N.C. Gen. Stat. § 50-13.2 (2024).)

What If Parents Violate Custody Orders?

If your co-parent is violating your custody orders—such as by withholding visitation—you may seek to enforce the orders in court. You'll need to file a motion for an order to show cause or a motion for contempt. If the judge finds that the other parent is in contempt of court for violating the order, penalties could include a fine or even jail time. (N.C. Gen. Stat. § 50-13.3 (2024).)

When Can Child Custody Be Modified?

If you want to change your existing custody order (including an order incorporating your agreement), you may request a modification. But to be successful, you'll have to prove that:

• since the existing order was issued, there's been a substantial change in circumstances that affects the child's welfare, and
• the modification is necessary to serve the child's best interests.

(N.C. Gen. Stat. § 50-13.7 (2024); Fecteau v. Spierer, 858 N.E.2d 123 (N.C. Ct. App. 2021).)

Even though a custodial parent's plans to relocate with the child would probably qualify as a substantial change in circumstances (depending on the distance), it wouldn't necessarily justify a modification unless the parent opposing the move can prove that a change in the existing parenting arrangements would be best for the child under the circumstances.

If you have a temporary custody order, you might be able to schedule another hearing in your case without having to file a motion. But if you have a permanent custody order, you'll need to file a motion to modify custody.

You and your co-parent may agree on a modification. But like with original custody agreements, you'll need to submit the modification agreement to the court to make it part of an official order. If you can't agree, a judge will hold a hearing to decide on your request.

Resources and Help With Child Custody

The North Carolina Courts provide DIY packets with forms and instructions to file for custody, request a modification, and request custody enforcement.

However, if you and your co-parent can't reach an agreement on custody or a custody modification—even with the help of a mediator—you would be wise to speak with a lawyer. It can be difficult to navigate the legal procedures and court rules involved in a contested custody proceeding. An experienced family law attorney can evaluate your case, help you gather the right kind of evidence you'll need, and represent you in court if it comes to that.