In North Carolina, a parent may not change the name of a minor child without the consent of the other parent, except in the following instances: the other parent is deceased; the minor child has reached the age of 16; the minor child has the consent of the custodial parent who has supported the minor child and the clerk of court is satisfied that the non-custodial parent has abandoned the minor child; or the non-custodial parent has been adjudicated as having abandoned the minor child.

 

An order awarding custody is enforceable by civil contempt proceedings and disobedience to a court order can also be addressed in criminal contempt proceedings. Civil contempt can also be used as an enforcement measure during the pendency of the appeal of any order for custody. Our statutes allow, but do no require, the trial court to make an award of reasonable attorney’s fees in a custody action. An award of fees requires that the court find the interested party to be acting in good faith and to have insufficient means to defray the expenses of the suit. Such an award is not limited to the prevailing party.

 

North Carolina’s Uniform Child Custody Jurisdiction and Enforcement Act requires that any party, any parent whose parental rights have not been terminated, and any person who has physical custody of the child must receive reasonable notice and opportunity to be heard before the court can make a non-emergency award of custody. Motions for custody in an already pending action may be made on ten days’ notice to other parties. However, the full ten days’ notice of the hearing to review an ex parte temporary custody order need not be given. The district court’s jurisdiction over custody continues from the time it obtains jurisdiction over a child until jurisdiction is terminated by the court or the minor reaches eighteen or becomes otherwise emancipated. Once the court steps in and assumes jurisdiction over child custody, the parties may lose their previous freedom to contract as they please with regard to custody issues. Thus, if the parties wish to effect an agreement, they may only do so through a consent order rather than a contract so long as litigation is pending. If they wished to put their agreement only into a contract, the litigation should be voluntarily dismissed. Like decrees as to future child support payments, custody decrees are always capable of being modified and thus do not meet the finality requirement for full faith and credit. To combat parental kidnapping done in an effort to attain a new custody decree in another state, North Carolina has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (”UCCJEA”). The UCCJEA is an attempt to bring to the nation a set of standardized jurisdiction and enforcement rules; and a version of this Act has been adopted in every state. However, it is wise to compare the Act as adopted in another state, if it is relevant to your case, to determine if there are idiosyncratic modifications of the act by that particular legislature. The UCCJEA provides four bases for jurisdiction over child custody matters. This state has jurisdiction 1) if it is the state in which the child lived for the six months immediately prior to the custody proceeding, i.e. the “home state”, or if the state had been the home state and the child is now absent because he or she has been removed by the individual seeking custody; or 2) if it is in the child’s best interest because the child and one or both parents have a “significant connection” with the state and evidence relevant to the child’s present or future care, training, and relationships is available within the state, and a court of another state does not have jurisdiction; or 3) if the child is physically present in North Carolina and has been abandoned or an emergency situation exists; or 4) if no other state would have jurisdiction under the UCCJEA, or if another state has declined jurisdiction and it is in the child’s best interest for North Carolina to assume jurisdiction. Certain limits on jurisdiction also exist. The court must refuse jurisdiction if there was a pending custody action in another state when the petition was filed in North Carolina, so long as the other state’s exercise of jurisdiction conforms to UCCJEA requirements. Declining jurisdiction is also appropriate if the petitioner has violated another state’s custody decree unless the child’s best interests require that the North Carolina court take jurisdiction despite this violation. The North Carolina court also has the discretion to decide to refuse jurisdiction if the petitioner in an initial action has taken the child from another state wrongfully or North Carolina is an inconvenient forum for the action. With regard to the issue of modification of an existing custody decree, a court with jurisdiction may not modify the decree of another state unless the latter has lost jurisdiction or has refused to exercise it.

The Parental Kidnapping Prevention Act of 1980 (PKPA) adopted by Congress also establishes standards regarding appropriate exercise of jurisdiction over custody matters among the states. The standards are much the same as those promulgated in the UCCJEA. However, under the PKPA, home state jurisdiction is paramount. Due to the Supremacy Clause in Article VI of the U.S. Constitution, when there is a conflict between the PKPA and a state’s UCCJEA, the PKPA as federal law overrides the UCCJEA.

Recent contact is also important with regard to the witnesses you have testify on your behalf. Witnesses should be chosen on the basis of not only their own involvement with you and your child and their possible expertise on your child’s needs, but also on the basis of the recency and frequency of their contacts with you and your child. You are much better off with witnesses who have seen you and your child a lot over the past year than with witnesses who have not seen you and the child together in the last three years or who have seen you and the child only very occasionally. You should consider a variety of people as possible witnesses: family members, social workers, daycare providers, psychologists or psychiatrists, teachers, extra-curricular activity leaders, ministers, pediatricians, parents of playmates and neighbors to name just a few.

 

 

Your child may not necessarily participate in the proceeding, even though his or her welfare is the focus of the proceeding. This is so because you, the judge and your lawyers may all agree that appearing in court might be unduly traumatic for your child; or, the child may be too young or fragile to understand what might be asked of him or her. Finally, because the status quo of the formerly intact family will not be sustained due to the dissolution of family ties, rules regarding the burden of proof and other rules of evidence may be relaxed in a custody trial. Thus, the process might even see the judge assuming a more inquisitorial role than usual.

 

In close cases, it may be desirable to have a psychologist evaluate both parties and/or the child. If possible, it is best to have one professional do all of the evaluations to provide a uniform standard and level of continuity. This process is generally known as a “custody evaluation.” A custody evaluation involves hiring a mental health professional to evaluate the child’s status and developmental needs, as well as the child’s relationships with each parent. You and your spouse could agree to a custody evaluation if you both believed it would help you resolve the custody issue. If you cannot so agree, one of you may move the court to require the examination and to appoint its own psychologist to advise the court. Bear in mind, however, the potential expense associated with the decision to have a custody evaluation conducted. Plan to interview prospective custody evaluators carefully regarding their fee schedules, if you have some choice in the selection of the evaluator. The custody evaluator may be any competent mental health professional, including a psychiatrist, psychologist or social worker. In our experience, the training and ideological background of the evaluator matters less than the evaluator’s understanding of children and family dynamics. As a result of the custody evaluation process, you and your spouse may learn a great deal about yourselves and your child. Having learned new things about yourself, your spouse and the child, you and your spouse may be able to consider following the recommendations of an impartial psychological evaluator rather than proceed on with litigation. Properly conducted, a custody evaluation may be conducive to settlement short of going on to trial.

 

In the usual case, the custody evaluator interviews the parents, both together and individually, one or more times. The evaluator also observes the child and the child’s interactions with each parent; and the evaluator may interview other people who are significant in the child’s life. It is not unusual for the professional to administer some standard psychological tests. It may also be helpful to the evaluator to visit the child’s home or to visit the place you are proposing that the child live. In the interest of objectivity, the professional selected for the custody evaluation should not be a person who has previously treated any member of your family. We also recommend that each party pay one-half the costs of the custody evaluation, to avoid the appearance that the professional is a “hired gun” for the parent who pays the fee. Occasionally one parent, or both parents independently, will hire their own expert mental health professional to advocate that parent’s custody position in court. Judges tend, however, to give less weight to experts who have been retained for the express purpose of being partial to one or the other side. In fact, some judges will disregard psychological testimony, which the judge perceives to be biased, in favor of hearing what other witnesses have to say about what they have observed in the interactions between parents and their children. The decision to employ an expert should best be made under advice from an attorney, as such a decision could lead to considerable expense without enhancing the outcome in your favor.

 

In preparing for a custody case, be aware that your parenting skills and daily interactions with your children will be thoroughly inspected by a judge. You will want to continue being the best parent possible. The people who have had close contact with you and your children may be called as witnesses, when it comes time for trial. By continuously acting in the best interests of your children, you will provide your witnesses with positive testimony for your case. In addition, you may want to secure photographs or videotapes of the rooms of the place where your child would live with you, as well as photographs of your neighborhood and yard. Photographs and videotapes serve to sharpen a judge’s personal experience with you and your children. Such engagement might lead the judge to take a greater interest in your side of the custody case.

 

When embarking on a custody battle, you should also remember that it is never too late to become a good parent. Put more bluntly, if you can modify your less desirable behavior with respect to the child in positive ways or do additional things to make the grade, you should begin to implement those positive changes immediately. Recent, more extensive involvement with the child, for example, can help ameliorate a history of infrequent closeness.

 

 

If you have to litigate custody, your most important allies in court will be all the people who have observed you interact with your child. These potential witnesses include relatives, teachers, doctors, daycare workers, neighbors and friends. Such witness testimony will be most helpful where the witness has seen your recent activities and interactions with your child, where the witness has made such observations over longer periods of time, and where you and the witness have also talked about your child.

 

Most custody battles, of course, are not between one parent and some non-parent relative or third party. Most custody fights are between the child’s biological parents. As between the parents themselves, our statute also makes it clear that there is no presumption favoring either the mother or the father. North Carolina has abolished, as have many other states, the maternal preference, which was a presumption that the mother would be most capable of caring for a child during its earliest childhood years. This presumption was commonly known as the “tender years” doctrine. However, the mere abolition of the tender years doctrine does not mean that the mothers of young children are out of luck in custody fights. To the contrary, quite a number of North Carolina judges are still strongly inclined to favor the mother while a child is very young, most especially when the mother has been the child’s primary caregiver all along.

 

 

The right of a parent to have custody of his or her minor child is substantial and, while not absolute, cannot be interfered with unless the best interests of the child clearly demand it. Thus, as against other relatives and third parties, a child’s natural parent is entitled to the custody and care of the child in an initial proceeding for custody, absent a finding of unfitness. However, where the relationship between the child and a non-parent better promotes the child’s welfare than does the relationship between the biological parent and the child, a judge has some latitude to award custody to the non-parent. This will happen, however, in very few contests between a natural parent and a third party.

 

The non-custodial, secondary parent’s time with the child is commonly referred to as visitation. Visitation is viewed in North Carolina as a lesser version of custody. Hence, the same principles apply to custody as to visitation in regard to the best interests of the child, parental rights, the child’s wishes, and the discretion of the trial judge. In most residential arrangements for children of divorce, one parent has more custodial time with the children and the other parent has less custodial time, also known as “visitation”. Visitation refers, in other words, to the custodial time assigned to the parent with whom a child does not primarily reside. In litigated custody cases in North Carolina, the secondary parent is most frequently awarded alternate weekends, sometimes one overnight during the week or another evening for supper, half of all major holidays, and special days such as Mother’s or Father’s Day and birthdays. Over the past few decades, there has been a judicial trend toward increasing the number and length of visitation periods for the secondary parent, although different judges in North Carolina have different philosophies regarding this issue. A few judges believe, for instance, that very young children should remain in one setting most of the time. These judges would, accordingly, award less visitation to the non-custodial parent, at least until the child is older.

It almost never happens in North Carolina that the non-custodial parent is denied any visitation time with a child. If the judge is persuaded, however, that a child may come to some harm or danger if visitation is not monitored, the judge can order that visitation be supervised. Supervised visitation sometimes occurs in the visiting parent’s home. The supervisor in such a location might be another judges’ to order no visitation for the secondary parent. In cases where one parent proves the child may be in some danger from the other parent, however, the judge might provide that all visitation will be supervised by either a relative or an unrelated third party such as a social worker in a protected setting. If visitation begins as supervised visitation, the order may provide for a phase-out of supervision once the suspect parent has proven him or herself to be more reliable or consistent around the child.

 

It is at the trial court’s discretion. A judge, not a jury, hears child custody matters in civil district court. Because the trial judge has the opportunity to see the parties and witnesses firsthand, the judge may exercise broad discretion in making a custody determination. The lesson here is to know one’s judge prior to trial and to understand the judge’s predispositions, if any, regarding awards of custody. In some counties in North Carolina, the parties have flexibility in their choice of a judge to preside over the custody hearing. In other counties, judges are assigned and the parties have little or no choice in the matter. The trial court has the power to award custody to both parties about equally, or to give primary custody to one party with visitation privileges to the other. In actual practice, however, North Carolina judges very rarely split the time a child resides with each parent in a way that approximates one-half of the time to each parent. The reason for this may well be a judicial unwillingness to believe that parents who are in court fighting over custody will be able to cooperate about anything regarding the child. Joint custody in the sense of equal time sharing would require the greatest amount of cooperation between parents. Thus, the most common custodial arrangement ordered by a judge will be primary physical custody in one parent (which might be “sole custody” if that parent is also given most decision making authority), with the child having secondary time with the other parent.

 

The welfare of the child is what judges see as most important in custody proceedings. The dominant principle in all child custody actions, including actions to modify custody, is that custody will be awarded to the person or institution who “will, in the opinion of the judge, best promote the interest and welfare of the child.” This language from the statute about the judge’s opinion gives the judge an enormous range of discretion as to the factors the judge actually considers as bearing on the child’s best interests and as to the weight the judge assigns to each of these factors.

 

 

Our statutes also authorize a court with appropriate jurisdiction to enter temporary orders providing for the custody and support of children. Such orders may be entered in order to provide continuing stability in a deteriorating situation, to preserve the status quo, to prevent a child’s removal from the jurisdiction, to return the child to an appropriate custodian, and/or to protect the child from harm, neglect or abuse. Emergency temporary orders may be entered ex parte upon a verified pleading or affidavit. An affidavit is a written or printed declaration or a statement of facts which is made voluntarily under oath. “Ex parte” means that only one side tells the court its version of events, for the reason that the other side has not yet been given the opportunity to address the court. Such an ex parte order does not fully satisfy the due process requirements of the U.S. and state Constitutions. Therefore, the court must review a temporary emergency custody order within ten days, at which time the other side has the opportunity to present his or her own evidence. After the court has heard the evidence from each side, the order will be continued (kept in force), modified, or terminated (dissolved).

 

 

If custody goes to court, you should keep this in mind: the focus on the best interests of the child in determining with whom your child will reside in essence forces the court to direct its attention principally to you and your spouse The court, therefore, will carefully examine your conduct in the past and, based on your past history, the court will predict how you will behave in the future. The trial judge is given wide discretion in his or her determination. Appellate review is very limited in this kind of litigation, as the courts of appeal are unwilling to substitute their judgment of the facts for the trial judge who presided over the proceedings. If the issue of custody is put before a judge, the judge will render a custody decision based on the “best interests” of the child. There are many, many factors considered by judges in determining the best interests of a child, most of which are straightforward and self-evident. The judge can consider all those things that might impinge on the development of the child’s physical, mental, emotional, moral, and spiritual faculties. In considering the child’s developmental needs, the judge would take a child’s age into account. Such factors include the mental and physical well-being (or lack of it) of each parent, each parent’s caretaking capacities and the home environment that each parent could provide to the child, the role of each parent thus far in taking care of the child, the age of the child, the child’s relationship to each parent, the time available to each parent to be with the child, as the judge may wish to maximize the child’s time with a parent as opposed to a babysitter or daycare center, the environment that the parent can create for the child, the presence of siblings in the family and the siblings’ relationship to each parent and to each other, prior bad acts of either parent (as, for instance, abuse and neglect), parental drug or alcohol problems, religious factors, the willingness of each parent to keep the other parent involved in the child’s life and to facilitate the other parent’s access to the child, and each parent’s adult relationships including non-marital sexual relations. But remember that the weight the judge gives to any of these factors is completely within the judge’s prerogative. Case law, North Carolina General Statutes sections 50-13.1 through 50-13.9, and Chapter 50A of the statutes, the latter known as the Uniform Child Custody Jurisdiction Act, provide the parameters for judicial actions regarding child custody, in addition to testimony regarding the facts and circumstances surrounding your case. Any parent, relative, or other person, agency, organization, or institution claiming custody of a minor child may bring an action in court. Filing a complaint, counterclaim, or motion in the cause in a prior pending action are the usual methods for putting custody before the court.

 

 

The timeline for bringing claims or motions for child custody and visitation is long, stretching throughout a child’s minority. The child custody action can be brought either independently or it can be joined with an action for absolute divorce, divorce from bed and board, annulment, or alimony without divorce. With regard to absolute divorce, the custody action may precede or follow the divorce action; or it may also take place during its pendency. If the action for custody is brought independently, the contesting parties must already be separated or there must be a pending claim that would lead a judge to remove one parent from the parties’ residence. Custody will not be decided if the family is remaining intact. Even though the North Carolina courts maintain jurisdiction over minor children at all times for purposes of custody and support, you and your spouse may nevertheless contract with respect to custody. This possibility for avoidance of court proceedings often allows for an amicable resolution of difficulties between separating parties and assists the child in adapting to his or her new way of life by sparing the child and the parties the trauma of litigation. A properly drafted separation agreement would also provide you and your spouse with the flexibility to effect your own modifications of the custody portions (or any other portions) of the agreement through further written amendment. However, future modifications to a previously established written custody arrangement may not be so easy. That will depend on whether you and your spouse agree over the subsequent modification. If parents cannot agree in the future to a change that one parent or the child wants, the court would become involved if the unsatisfied parent sued. In such a case, where the parties had not previously litigated but had settled custody by prior written agreement, the court would make its own initial determination of custody and visitation without either party having to show changed circumstances affecting the welfare of the child. The court’s initial determination would be based, as always, on the child’s best interests.

 

Can a separation agreement including custody be incorporated into a divorce decree?

Within a separation agreement, the parties may agree to have the contract incorporated into a later divorce decree. If the agreement is incorporated, it becomes akin to a consent order and is modifiable and enforceable as a court order. This means that an incorporated agreement, unlike an unincorporated agreement, would be enforceable through contempt and it would also be modifiable without the parties’ consent based on one parent’s showing of changed circumstances detrimentally affecting the child. There are, however, some counties in North Carolina in which judges regularly decline to incorporate a separation agreement regarding custody into a divorce decree when the only claim ever filed has been solely for absolute divorce. The fact that there is a custody order does not end the matter forever. As already mentioned, an order awarding child custody may, subject to the court’s having proper subject matter jurisdiction, be modified or vacated at any time upon one party’s motion and a showing of changed circumstances by the interested party. “Changed circumstances” are changes affecting the child’s welfare both positively and adversely. The changes must, moreover, be substantial for the prior order to be modified. The burden of proof in custody cases is by the greater weight of the evidence, as in most civil cases. The evidence, to support your claim for custody, must therefore show how your behavior and abilities will further your child’s overall development and welfare better than your spouse’s behavior and parenting abilities would do. In general, the parent with the best caretaking history or caretaking potential will be the parent preferred by the judge, provided that that parent and the child have a satisfactory relationship. But the judge will consider all the many common-sense factors enumerated here to determine which custodial placement is in the child’s best interests.

 

 

Of the many issues in domestic law, child custody is perhaps the most emotionally charged. For this reason, it can also become the most expensive sort of litigation that might result from your separation. In most cases, however, couples are able to compromise on custody without forcing this issue into court. In fact, in more than ninety percent of all divorces, child custody never becomes a real issue. One parent (still usually the mother) has been the primary caregiver throughout the child’s life; and the parties agree that this caregiver should continue to have the child most of the time. In North Carolina you and your spouse may settle issues of custody and visitation by private agreement; custody does not have to be submitted to a judge. Until you both settle, or until a court issues a ruling on custody, remember that the general rule applies: each parent has co-equal rights to the physical possession of a child of the marriage. Unless there is some written document establishing custodial and visitation rights, the custodial arrangements are subject to being changed at the whim or caprice of either parent. For as long as you don’t have some controlling written document, either you or your spouse could try to change the existing custodial arrangement at any time simply by moving a child’s residence. Many couples do not understand that without some written agreement or court order, a child is vulnerable to unpredictable disruption in living arrangements and discontinuity. Such possible disruption even means that either parent would be completely free to move from an existing county of residence or to leave the State of North Carolina with the children, unless the sole purpose for leaving was to evade the jurisdiction of our courts. Relocating the children — in the absence of a written document prohibiting such a move — is not abduction, unless the motivation for moving with the children is to evade the jurisdiction of the North Carolina courts. Remember that within a separation agreement you have the power to define the custody arrangement that is best for your child, but if a judge has to decide the custody arrangement, you lose your decision making power.

 

Do children get to decide who they will live with?

Our North Carolina cases provide that the wishes of a child of “sufficient age to exercise discretion” are “entitled to considerable weight” in a custody case but the child’s wishes are not controlling. Although other states hold to various ages at which the child’s testimony on this issue becomes relevant, the test in this state is whether the child has sufficient mental capacity and comprehension to offer a reasoned opinion about where he or she wants to live. The testimony of a child who is competent to testify on this issue might be heard in open court. However, it is often preferable for the interview to be conducted in chambers. An interview between the child and the judge in chambers can be arranged through use of a stipulation between the parties. In North Carolina, a judge is never required to defer to the parental preference of a minor child. In practice, as the child gets older and especially when the child is a mid-teenager, the judge may place more weight on the child’s own desires. Preference will not be the judge’s determining factor. The determining factor will remain the best interests of the child. Visit our article on when children get to decide custody to find more detailed answers to this complicated question.

 

What impact could my dating have on child custody?

Your spouse’s discovery of your interest in another woman or man (as the case may be) could unravel a settlement as to custody. The sudden or unexpected “insertion” of another “parent” figure in your child’s life is often experienced as a threatening disruption by the child’s other biological parent (or your spouse’s own parents); and many spouses react to such a threat by insisting that the child be totally insulated from a new girl or boyfriend. While this insistence may be highly unrealistic, its frequent result is to upset a couple’s custody plans. Whether your custody plans were once agreed on, or are now coming apart because of a new dating partner, or whether there never were any agreed on plans, your spouse could try to use the presence of a new person in your life as a “weapon” against your gaining custody of your child or against your continuing to have custody. You need to know that appellate cases in North Carolina have overwhelmingly rejected this sort of attack, based on the particular facts of those cases. But if your spouse could show that your dating – even unaccompanied by sexual intercourse — had led to distraction or great preoccupation with your love life, and consequent neglect or inattention to your child, your position in a custody dispute could be greatly weakened.

 

What is joint custody? What is sole custody?

Even where there has been an amicable settlement on the issue of a child’s principal residence, parents can get hung up on terminology. One parent insists she wants “sole custody” and the other parent fights to include the phrase “joint custody” in the written agreement. This fight over language is often less important legally than the spouses think. These terms typically refer to a parent’s rights to make decisions regarding the child, with “sole custody” indicating that the parent with possession has most or all of the decision-making authority and with “joint custody” tending to indicate that each parent will have some decision-making input. In actuality, however, the terms “joint” and “sole” mean whatever the written custody document says they mean. You need to keep this in mind as you draft your agreement; you also need to keep this in mind when you start to find yourself in a fight over phraseology. The terms “sole custody” and “joint custody” have no special meaning in North Carolina except the meaning you give them in an agreement or the meaning a judge gives these terms in a court order. In other words, it all depends on what else the document says, if anything, about decision-making.

 

Who will get custody of our children?

You and your spouse can decide which of you will have custody of your children. If you are unable to resolve this question, then a court will resolve the issue of custody for you. Judges consider a variety of factors in determining which parent is entitled to custody including the age of the child, the time each parent has available to spend with the child, the stability of the parents, efforts by either parent to undermine the other parent, abductions, moves out of state, facilitation of visitation and involvement of the other parent, child abuse and neglect, drug and alcohol problems, religion, non-marital sexual relationships and the preferences of the children. In almost all cases, the parent not being awarded custody will be awarded a period of visitation with the child. Typically, the natural parents of the child are awarded custody; however, the law provides for custody by grandparents and other third parties when circumstances warrant such an arrangement.

 

If I have custody will I receive child support payments?

The court will order that child support be paid to the custodial parent by the non-custodial parent. In North Carolina child support payments are based on guidelines. These guidelines are adhered to by the court in the typical case; however, the court may deviate from the guidelines. The non-custodial parent is ordered by the court to pay a percentage of that parent’s gross monthly income.

 

If both parents share custody does anyone pay child support?

Yes, in North Carolina both parents are responsible for paying child support and there will always be a payment except in the unusual circumstance of both parents having exactly the same income and spending exactly the same amount of time with the children.

 

Can a parent refuse to allow visitation if child support is not paid?

Although many clients think they can tie child support payments to visitation privileges, it is important that you understand that the one is legally independent of the other in terms of either unilaterally withholding support or suspending visitation. Thus, for example, if one party has not received the appropriate child support payment, he or she may not independently decide to bar the other from exercising any visitation rights. There is no supportable legal foundation for such a move. In addition, such retaliation can potentially impair your child’s welfare.