Child Custody can be one of the most emotionally challenging and contentious areas in family law. Decisions affecting the care, custody and control of children are critically important and inescapably personal. The term “custody” can refer to either the physical custody of a child, the legal custody of a child (decision making authority), or both. Disputes regarding custody can arise between divorcing spouses, unmarried people who have children together, or non-parent third parties such as grandparents. Parents typically have either sole custody or some form of shared custody, also referred to as joint custody. One important fact to keep in mind is that generally speaking, until custody has been determined by either a separation agreement or a court order, both parents share the same rights as one another regarding their children.
When physical custody is shared, one parent is typically granted “primary” physical custody, with the second parent receiving “secondary” physical custody. Secondary custody is commonly referred to as “visitation.” In North Carolina, visitation is viewed as essentially being a lesser order of custody, so the same rules and standards that apply to one will generally apply to the other as well.
Custody is generally something that can (and I believe should) be worked out between parents outside of court in a separation agreement. A well-drafted parenting plan in a separation agreement should create an environment and schedule that is best for the children and should be as detailed as possible regarding holidays, weekends, summer vacations, school schedules, birthdays, and such to avoid or minimize future conflicts between the parents. Sometimes, however, going to court is necessary. Domestic violence, substance abuse, and other serious issues can make court action your only safe option. Sometimes parents simply can’t or won’t agree to a parenting plan.
How is Custody Decided?
Custody is decided based on whatever arrangement is in "the best interests of the children". That is the legal standard used by the court system in making these kinds of decisions. Practically speaking, custody is decided either by the parents in a separation agreement or parenting plan (whether by mutual agreement or mediation, arbitration or collaborative law), or by the court system. In North carolina, there are two kinds of custody determinations that the court makes - the initial determination and modifications to existing orders.
When making the initial determination, the court examines all evidence and facts and circumstances and decides what schedule is in the best interests of the children. When deciding whether or not to change an existing order, the court must find that a "material change" has taken place in the circumstances that existed when the last order was entered, and that as a result, the last order's terms are no longer in the children's best interests and should be changed.
Court Procedure for Custody
When a parent files a complaint for child custody, a few things must happen. The state of North Carolina requires parties to try to settle their dispute in mediation. This can be private, if approved by the court, but far more commonly parents must attend a free mediation orientation and session at the courthouse. Many parents find this process helpful and are able to resolve their issues at this mediation session. Your lawyers are not allowed to attend mediation with you, and the court officer conducting the mediation works with both parties directly to try to facilitate an effective and appropriate custody schedule. The schedule for mediation varies from county to county, but typically the court holds orientation two times per month, and the orientation process includes scheduling your mediation session. Again, this is a free service.
If no agreement is reached, the custody process moves to the hearing phase. At a custody hearing, your lawyer will present evidence and make arguments in support of your custody schedule. Your lawyer will likely ask you to testify, which means you sit beside the judge's bench in the witness stand, are sworn in, and answer your lawyer's questions truthfully. After your lawyer finishes, the other parent's lawyer will have a chance to ask you additional questions, which you also answer truthfully. Once all the evidence has been presented and arguments made, the judge will decide what s/he believes to be in the children't best interests.
To modify an existing court order for custody, the process is similar, but as I said above, the parent who wants to change the custody order has the burden of proving that a material change in circumstance has taken place and that the existing schedule is no longer in the children's best interests.