Child Custody

Child Custody Determinations in North Carolina

In North Carolina, there is no preference established in the law for the mother or father or the natural or adoptive parent to receive custody of the children. The standard the court will use to determine initial custody is “the best interest of the child.”

The court may but does not have to give weight to a child’s preference for custody. The judge may decide in his/her discretion whether a child’s testimony in a custody hearing is given in court or in the judge’s chambers. Most often the child’s testimony will be in the judge’s chambers. The older the child the more likely the judge will take his/her preference into consideration. At Hopkins Law Firm, PC, we strive to keep children out of custody disputes and only involve children when absolutely necessary. Some instances when a child’s testimony is necessary include when the child is a victim of sexual abuse or domestic violence and his/her testimony is necessary to keep him/her safe.

What is a Temporary Child Custody Order?

A party may ask 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 justifies an award of temporary custody. The party seeking a temporary child custody order may use an ex parte motion to obtain a temporary custody order if it is an emergency situation where the child is at risk or if the other parent is planning to leave the state to avoid jurisdiction. An ex parte motion is often heard by the judge without notice to or argument from the adverse party. However, ex parte motions for emergency custody should only be used in real emergencies and should not be used to gain leverage in a custody case. Hopkins Law Firm, PC requires verifiable proof before we file any motions for emergency custody.

Who Determines if a Child Custody Case Goes to Trial?

Either party can ask for the court to hear a claim for custody. Prior to trial the law of North Carolina requires most parties to participate in mandatory court ordered mediation to try and resolve who should have custody of the children. The goal of mediation is to resolve custody cases amicably and without a trial.

If after mediation the parties cannot agree to who should have custody the case can be calendared for trial and the judge will make a determination.

Either party can ask for a custody evaluation where a third party assesses each parent and prepares a report for the court to assist the judge in making a custody determination. These evaluations are very expensive and can cost between $5,000.00 and upwards of $15,000.00. The judge will consider the evaluation and all other relevant factors in making his or her decision as to what is in the best interests and welfare of the child with regard to awarding custody.

Domestic Violence and Its Impact on Custody

If the court finds that domestic violence has occurred, the court shall make determinations and orders in the best interest of the children and the party who were the victims of domestic violence. If a party is absent or relocates with or without the children because of domestic violence, the parent’s absence shall not be a factor the court considers in determining custody or visitation.

What is Joint Custody?

Joint custody may be considered upon the request of either parent. There is no statutory definition of joint custody in North Carolina. A joint custody arrangement can be defined by the parties to best meet their and their children’s needs.  There are two types of custody: legal and physical. Legal custody is defined as who makes decisions regarding major issues like religious upbringing, schooling and medical decisions. Physical custody who has physical control of the minor child.

Unlike sole legal and physical custody when one parent has primary responsibility for the care, custody and control of the children and does not have to take the other parent’s wishes into consideration, a joint custody agreement requires the parents to communicate and both have the legal responsibility for the care, custody and control of the children.  This means the parents will have to reach mutual decisions about such issues as schools, religion, medical care and discipline.

A joint physical custody agreement could state the child lives every other week at one or the other parent’s homes or weekdays with one parent and weekends with the other or any other arrangement that works for the child and the parents.

If one parent who is part of a joint legal custody agreement refuses to participate in the joint decision making process and makes decisions about the children’s upbringing without consulting the other parent they could be found in contempt of court if the custody agreement is a court order.

May a Custody Agreement be Modified?

A permanent custody agreement may be modified based on a substantial change in circumstances. The party requesting the change must show there has been a substantial and material change affecting the best interests and welfare of the children. A temporary order may be modified at any time based upon what the court determines to be in the minor child’s best interests.

How to Prepare for a Child Custody Trial

Stay involved in your children’s lives. Get to know their friends, their friend’s parents, teachers, counselors and coaches. When you go to trial you will be asked to provide witnesses who have first hand knowledge of your relationship with your children.

If I am Not the Custodial Parent What Visitation am I Entitled to?

If you are in the beginning of your dissolution or separation it is advisable to enter into an agreed to visitation schedule for the children of the marriage. This will make the transition easier on you and the children.

Today most court orders no longer use the term visitation. Rather the court will refer to custody as primary and secondary custody where both parties are entitled to exercise visitation with the children.

If there is a history of domestic violence, drug use or alcohol abuse the judge may order supervised visitation as being in the child’s best interest and welfare. A judge will seldom deny visitation.

Child Support and Custody

The parent with custody does not automatically receive child support. Child support in North Carolina is based on the North Carolina Child Support Guidelines which create a rebuttable presumption of the child support owed. The guidelines for child support use the party’s gross incomes and their contributions toward health insurance, daycare costs and other expenses for the children paid for by either parent as the basis for determining if one or the other parent has a child support obligation.

What is the Parental Kidnapping Prevention Act?

The Parental Kidnapping Prevention Act was adopted by Congress in 1980 to establish standards regarding jurisdiction over custody matters among the states. If your ex-spouse has taken a child for whom you have primary custody out of state and refuses to return the child, you may seek relief under the Parental Kidnapping Prevention Act (PKPA). Contact the local law enforcement authorities and request they assist in the return of the child. Local law enforcement is bound by law to enforce the PKPA.

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