Child custody is often the most emotionally difficult issue in family law. Determining where your children live and how decisions for them are made can be a complicated process. If parents cannot agree on a timesharing arrangement best suited for their family’s needs, then a court must decide. This will likely delay resolution and can turn bitter due to the adversarial court process. Unfortunately, children are often caught in the middle.
At Hatcher Law Group, we encourage parents to resolve their child custody issues without involving the court. However, if litigation is necessary, our attorneys have considerable experience representing clients in highly contested and complex custody cases, including those involving children with special needs, allegations of substance abuse and/or child physical and sexual abuse.
Physical Custody and Legal Custody
In North Carolina, there are two aspects of child custody: physical custody and legal custody. Physical custody defines where a child will reside and the parenting time schedules. A parent may have sole physical custody, meaning the child is in his or her exclusive physical care. Alternatively, parents may have joint physical custody, also referred to as shared custody, of their child. Joint or shared custody can be a parenting schedule that allows parties to divide the physical custody of the child based on a percentage of time on a rotating basis. Legal custody defines which parent has decision-making authority regarding major issues, such as a child’s medical care, education and religious preference, as well as the child’s general welfare.
Child Custody Litigation
When a custody case is litigated in North Carolina, a judge must make a decision based on which parent will best promote the interest and welfare of the child – this is often referred to as the “best interest of the child” standard. There are many factors a judge will consider when determining which parent will best serve the interests of the child. These factors may include the physical and mental capacities of the parties, historical caretaking responsibilities of the parties, work requirements of the parties, and domestic violence issues, just to name a few.
While a parent may believe he or she knows what is in the best interest of the child, that parent will have the opportunity to present testimony and evidence supporting his or her contentions to try to convince the judge of this opinion. Ultimately, the decision is in the hands of a judge if the matter progresses to trial and the parties cannot reach an amicable settlement.
Does the Mother Always Get Custody?
No. A common misconception in child custody cases is the idea that the court will favor the mother over the father. North Carolina Law states that no presumption between mother and father will apply to which parent will better promote the interest and welfare of the child.
What is an Emergency Custody Order?
A party may initiate an emergency motion for a temporary custody order if a child is exposed to a substantial risk of bodily injury, sexual abuse or if 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 the North Carolina courts §50-13.5 (d)(3).
In circumstances warranting emergency motions, a party can approach a judge ex parte (without the other party present) to request a change in the living arrangements of a child or to change custody. A party should remember to consult the Local Rules of Court for the jurisdiction where the motion is brought to ensure compliance with all procedures in that court. If the emergency motion is granted, the judge will schedule a second hearing approximately ten days later to give the other party an opportunity to respond to the allegations.
Do Children Have to Testify in Custody Cases?
The answer to this question is typically in the discretion of the judge. It most frequently depends on the age of the child. Testimony of children may be heard in open court on a witness stand, but in North Carolina, a common practice is for a judge to meet with a child privately in camera (in the judge’s chambers). In order for a child to meet with a judge in camera, the consent of both parents must be given. A problem with such a situation is that the testimony of the child in chambers is rarely recorded. Thus, the parties do not know what was said and may have difficulty with creating a record for an appeal. A child’s wishes will be only one factor that is considered by court in the determination of custody. This is not because of any legal right the child possesses to have his or her wishes granted, but because the consideration of such wishes will aid a court in making a decree for what is in that child’s best interest and welfare. Brooks v. Brooks, 12 N.C. App. 626 (1971).
The state of North Carolina requires both parents to participate in a process called mediation before a judge will hear the case. Mediation sessions can be conducted privately, where the parties have hired a mediator, or through a court-ordered, court-run program. A mediator will work with both parties in an attempt to resolve their matter and keep it from going to trial.
If child custody issues are resolved through mediation, the mediator will prepare a parenting agreement setting forth the terms of the custody settlement. However, the mediator cannot provide legal advice to either party. Before signing the parenting agreement, both parties are strongly encouraged to consult an experienced family law attorney to review the document and to answer any questions. Taking this additional step could be critical in avoiding future conflicts related to a child custody matter.
Once parties agree to the conditions of the parenting agreement, then the agreement can be adopted as an order of the court and subject to enforcement, contempt, and modification.
If the mediation is unsuccessful, then the parties may have to proceed with litigation in order to resolve their issues.
In Mecklenburg County, the parties involved in custody and visitation lawsuits, including contempt motions and motions to modify existing custody orders, are required to attend a parenting education course, which focuses on how children are affected by divorce and family transitions, and how parents can minimize the impact these changes have on children.
Modifying a Child Custody Order or Agreement
If the terms of custody are in a court order, a parent may always request a modification of that order. As children grow, their needs change, as do their preferences for activities. In order to modify a custody order, or an agreement related to custody that has been incorporated into a court order, the party requesting a modification must show that a substantial and material change of circumstances has occurred since entry of the current order in effect, and that it is in the best interest of the child to change that order. If the custody terms are in an agreement which has not been incorporated into a court order, the parties will need to amend their agreement or file a new custody action for the purposes of entering a consent order which sets out their custody terms.
Choosing the Right Attorney
There is so much at stake during a child custody dispute. Consulting an experienced family law attorney will help you understand your rights, obligations and options. The attorneys at Hatcher Law Group are trusted advocates and advisors for our clients. If you or someone you love is dealing with a child custody issue, we can help. Please contact us today to schedule a meeting with a family law attorney.