Child custody can be one of the most contentious and emotionally charged areas of family law. There is no love like the love a parent has for a child; and when parents cannot agree on custodial arrangements and parental rights and responsibilities, they may find themselves engaged in bitter and lengthy litigation.
North Carolina law makes a distinction between the terms “physical” and “legal” custody of a child. “Physical custody” refers to having actual physical care and custody of the child. A parent with whom the child resides for more than 183 overnights per year is deemed to have “primary physical custody” with the other parent having “secondary physical custody” or “visitation.”
The term “legal custody” refers to the parties’ respective rights to make major decisions relating to the welfare of the child, such as those pertaining to the child’s health, education, and religious training. As an illustration, a judge may order (or the parents may agree) that one parent should have sole physical and legal custody of the child with the other parent having visitation rights, or the judge could order (or the parties could agree) that both parties together should have joint legal custody and shared physical custody.
If parents are able to agree on the issue of child custody, it may not be necessary to initiate a legal proceeding to bring the matter before the court. There are many advantages to parents being able to reach an agreement on custody. Not only is it less expensive than going to court, but it allows the parties to retain some control over the outcome of the matter and eliminates the uncertainty of having a judge make a decision on this important issue. However, when parents are able to reach an agreement on child custody, it is recommended that they enter into a valid written agreement (sometimes referred to as a “parenting agreement” or a “consent order”) that clearly specifies their custodial arrangements. In the absence of a written agreement or court order, both parents are presumed to have equal rights to the child. A written agreement can offer certain legal protections in the event that one parent decides to unilaterally change the custodial arrangements or remove the child from the jurisdiction of the child’s home state without the consent of the other parent.
In North Carolina, if a parent initiates a legal action for child custody, both parents must participate in mandatory child custody mediation before the court will conduct a hearing to determine permanent custody. Mediation may be waived only in very limited circumstances for good cause shown. At mediation, the mediator (a neutral person) will work with the parties to help them reach an agreement to resolve custody. The parties do not have to reach an agreement at mediation and the mediator cannot impose an agreement on them. If the parties reach an agreement on child custody at court-mandated mediation, the court has authority to adopt the mediated custody agreement as a court order. As such, the order may be enforced by the court through its powers of contempt.
When custody is submitted to the judge for determination, the legal standard that applies is “the best interests of the child.” There are many factors that a trial judge may consider in determining what is in the child’s best interests, including, but not limited to, the child’s age, schedule, special needs, which parent has been the primary caregiver, the child’s attachment to each parent, the parents’ respective living arrangements, and their abilities to supervise the child and provide for the child’s day to day needs. The court may consider the child’s wishes in determining custody for an older child.
Child custody always is subject to modification by a court having jurisdiction. Either parent may initiate legal proceedings to modify a permanent custody order based upon a showing of a substantial change of circumstances affecting the welfare of the child.
When your child’s welfare and future are at stake, you need the most effective legal representation available. Retaining an experienced and competent family law attorney to represent you in your child custody and child support matters will increase the likelihood that you can reach a negotiated settlement that is fair and reasonable and reduce your chances of becoming engaged in prolonged litigation.
If your matter goes to trial, the trial judge is vested with broad discretion in determining family law matters, including child custody and child support. There is no substitute for the value that an experienced and competent family law attorney can bring to these proceedings.
At Tharrington Smith, we believe that families know their personal situation far better than a judge or third party can ever know. We encourage our clients to try to resolve their family related matters through settlement negotiations, mediation, or collaborative law. We are first and foremost seasoned trial attorneys and, if it is not possible to resolve your matter in an amicable manner, we stand ready to vigorously present your claims in court.