Cary Child Custody Lawyer

North Carolina Child Custody Laws

When parents go their separate ways, the experience can be more traumatic for the children than for the parents.

It is important for parents to handle their separation or divorce in a delicate manner in order to minimize the emotional impact the breakup has on a child.

Talk to our child custody lawyers at Montgomery Family Law for assistance with a child custody dispute in Cary, Raleigh, and throughout Wake County.

Child Custody Mediation in North Carolina

When a child's parents separate, decisions regarding the care and support of the child must be made. If the parents are not able to resolve the issues of custody, visitation, or child support, a judge will.

North Carolina law directs District Court judges to protect children until they reach majority (usually age 18) by determining what is best for the child when parents cannot agree or when either parent submits the issue to a court.

Generally, the child and the parents will be better served by putting the child's welfare first and trying to decide what is best by agreement, rather than by litigation. Access to a child should never be used by a parent for revenge—the child's needs and interests should come first. In an effort to avoid litigation, mediation is required in order to encourage decision-making by the parents.

What Happens During North Carolina Child Custody Trial Proceedings?

If parents cannot agree between themselves, a District Court judge will decide who should have custody and how much visitation a non-custodial parent will have. When deciding on custody matters, the judge considers several factors in determining a resolution in best interests and welfare of the child. These factors include:

• The child's age.
• Which parent assumed primary responsibility in caring for the child during the marriage.
• Which parent would feed, bathe, clothe, and teach the child during the week.
• The work schedules of each parent who works outside the home.
• The physical, emotional, and parenting abilities of each parent.
• With whom the child has bonded psychologically.
• Whether one parent is using the child to hurt the other parent.
• Whether one parent is preventing the child from continuing a relationship with the other.
• Whether either parent is unfit, unwilling, or unable to raise the child.

Courts do not favor either the mother or the father as the custodial parent. The only concern is the welfare of the child.

North Carolina Child Custody Statutes - Legal & Physical Custody

In North Carolina, the statutory law does not well define the terms "legal custody" and "physical custody." Child custody, whether sole or joint, is "legal" (or enforceable by law) if it is part of a court order or valid, written custody agreement.

This sense of having "legal" custody of a child is different from the specific technical definitions of "legal custody" and "physical custody" used when discussing the applicable statutes and relevant case law.

"Legal custody" and "physical custody" in this technical sense describe two different aspects of custodial rights that the parents might share. "Legal custody" refers to the right to make major decisions affecting the child's life. These include decisions about a child’s education, religious upbringing, and medical care. "Physical custody" refers to the physical care and supervision of the child.

This means that a parent can have both legal custody (i.e., decision making authority for the child) and physical custody (i.e., physical care and supervision of the child) as determined by a custody agreement or court order.

Orders may be entered after a hearing or by agreement (i.e., without a trial). Even if a lawsuit has been filed, the two parties may agree and ask the court to approve their agreement. These agreements are almost always approved; the result is called a consent order, which can be enforced by the court.

How Is Child Custody and Visitation Determined?

It is common for parents to be granted joint custody of a child, meaning that each parent has equal physical custody time with the child, as well as equal decision making authority for major decisions affecting the child's life.

However, sometimes it is in the best interest of the child that one parent be granted primary custody of the child. When one parent is granted primary custody of a child, the other parent usually is granted visitation privileges.

Except in extraordinary circumstances, it is healthy and desirable for the child to have regular contact with the non-custodial parent.

Two visitation options are:

• Reasonable Visitation. There is no set time for visitation. This is subject to an agreement to be decided by the parents. However, this option can only be used in custody agreements, rather than orders entered after a hearing.
• Structured Visitation. There is a schedule for child visitation that may include visitation every other weekend from Friday evening through Sunday evening, alternating holidays through the year, and several weeks during summer vacation. Schedules may also include: overnights during the week, weekend visits, telephone calls, video calls, sharing of holidays, and school vacations.

Until the parents execute a written custody agreement or a court grants custody to one parent, both parents have equal rights regarding their child. This does not, however, give one parent a right to take the child from the other.

Whether the judge enters an order for equal time or, alternatively, grants primary physical custody to one parent and visitation to the other, depends on a myriad of factors. The type of child custody and visitation schedule depends on conditions such as:

• The living arrangements of the parties.
• The ages of the children.
• How far apart the parents live.
• The desires of older children.
• Whether there has been domestic violence or child abuse.

Joint custody can, of course, be beneficial for the child if the parents are interested in and capable of working together for the child's best interests. On the other hand, it can be disastrous if one parent is bent on obstructing or undermining the other parent or the child.

Is NC a Mother State?

No, state law requires custody to be determined based on what is in the best interests for the child.

The gender of the parent has no effect on custody, as each parent has equal grounds to ask for custody, visitation, or support. Keep in mind, the father must establish paternity if he wishes to ask for these same rights.

At What Age Can a Child Refuse Visitation in North Carolina?

The state of North Carolina says that a child may refuse visitation once they are the legal age of 18.

What is Considered an "Unfit" Parent in NC?

When a parent cannot carry out their duties as guardian, such as providing guidance, care, or support, then they may be ruled "unfit" to care for a child. A judge may look at several factors including:

• Past or current alcohol or substance abuse.
• Any history of mental illness that inhibits the parent fulfilling their obligations.
• Any history of engaging in abuse or neglect.
• An unwillingness to be part of the child's life outside of visitation hours.

Child Custody and Child Support

A separation agreement may allow credit to reduce child support if the child spends a relatively long period of visitation (three or four weeks) with the supporting parent. All North Carolina courts use guidelines that take into account extended time with the non-custodial parent.

Some custodial parents may refuse to allow visitation when support is not paid, or a parent may withhold child support when he or she is not allowed to see a child by the other parent. However, neither parent has the right to withhold support or visitation—only a court has that authority.

Call us at (919) 348-2317 or fill out our online contact form to discuss your custody and support matters.