Child Custody in North Carolina
How does the court determine who will get custody of minor children?
In any child custody case, the court seeks to determine which party or
parties “will best promote the interest and welfare of the child.”
N.C.G.S. §15-13.2(a). Fathers and mothers alike have a Constitutionally
protected right to their children. Therefore, the mental, physical,
and financial fitness of the parents will be considered.
Hunt v. Hunt, 112 N.C. App. 722, 436 S.E.2d 856 (1993).
In doing so, the court will consider all relevant evidence
and decide the child(ren)’s best interest based
on the evidence presented. That means that all of the
evidence of what will “best encourage full development
of the child’s physical, mental, emotional, moral,
and spiritual faculties” will be considered by the court.
In re Peal, 305 N.C. 640, 290 S.E.2d 664 (1982).
Can my spouse/partner and I make a binding agreement
on the issue of child custody and visitation of our minor children?
Yes. Oftentimes, you and your spouse/partner are in the best position to determine what is best for your children, not the court. Spouses or partners can enter into parenting agreements or separation agreements that address child custody and visitation, amoung other issues. However, such agreements must meet certain legal requirements and if you wish for your agreement to be enforceable in the event of a future disagreement, it must be drafted precisely and tailored with your particular facts and circumstances in mind.
After suit has been filed, parties to a child custody lawsuit can also enter into a consent judgmentsubject to court approval. If parties agree or consent to an entry of judgment for child custody and visitation, and it is approved by the court, this judgment will be made an order of the court, and enforceable in the same manner as if the court entered the order after hearing evidence.
Temporary vs. Permanent Child Custody Orders
The court may make enter a preliminary and temporary child custody order pending a final decision of the court. The main difference between the two is that a temporary order is not prejudicial to either party and is only an order entered pending the final custody order determination. It should be noted that a “permanent” custody order is never truly permanent as any custody and visitation order can be modified upon a proper showing of a “substantial change in circumstances” and that the best interest of the child(ren) requires a modification.
Seeking a Modification of an Existing Child Custody Order
Once there is an initial child custody order in place, either entered by the court after hearing or by consent of the parties, any modification of that order requires a showing of a “substantial change in circumstances” that affects the welfare of the children, either adversely or to their benefit.
Mandatory Mediation for Child Custody & Visitation
When parties file a claim for child custody and visitation in North Carolina, nearly all judicial districts require parties to participate in mandatory mediation pursuant to N.C.G.S. §15-30.1(b). This confidential mediation process seeks to resolve, by mutual agreement, matters related to the care and custody of the minor child(ren). If parties come to an agreement, this agreement is reduced to writing and is made an order of the court. In some circumstances, and upon a showing of “good cause,” this process may be waived by the court.
What if my spouse/partner and I cannot agree on child custody and visitation?
Parties may wish to litigate their cases before a judge at a formal hearing where evidence is presented before the court, e.g. evidence can be in the form of live testimony, documentary evidence or expert testimony. The judge will hear the evidence and make findings of fact to determine what is in the best interest of the minor child(ren). This process can be time consuming and costly. In higher conflict child custody cases, there are additional resources that may aid in you and your spouse/partner coming to a resolution of your case. Your attorney can advise you based on your individual needs.
Contact our office to make an appointment to discuss seeking or defending the custody of your minor children.
Legal Disclaimer:
All legal summaries contained, herein, are intended for educational purposes only and not intended to act as a substitute for personalized legal advice by competent counsel. Although every attempt has been made to provide accurate legal summaries, the law continues to change and the most recent changes to the law may not be reflected herein. Always consult an attorney for up to date and personalized legal advice.
