North Carolina Family Law Basics (7 Part Series) Part 4 Child Custody

The most stressful part of any separation and/or divorce is child custody.  My purpose for this blog post is to try to make sure that you, the reader, understand that your child is the only thing that matters and the only thing that you need to focus on.  Although it may be a situation where your spouse or partner stepped out of the bounds of your relationship with another, custody is still about your child and your child only.  Your job as a parent is to figure out objectively what is in your child's best interest.  A good attorney will help you find your objectivity.

Child custody can be the most difficult part of any separation process.  As you can imagine, some parents act very irrational and wholly unrealistic when it comes to how much physical custodial time they want to have with the child.  Some parents also believe that they should be the sole decision maker and that the other parent should have no say so as to where the child goes to school, what activities he or she does, what pediatrician should care for the child, etc.   These decisions fall under Legal Custody which grants a parent, or both parents, authority to make decisions for and concerning the child's well being.

When thinking about how to share physical and legal custody remember that the courts use the "best interest of the child standard" in determining physical and legal custody of the child. Ultimately, Judges are given discretion to determine what custody is in the child's best interest. 

More often than not, a form of joint custody is awarded.  This means that both parents have physical and legal custody of the child, even though physical custody may not be equally shared by the parents.  For example, joint custody may be agreed upon by the parents or ordered by the court, but it would be subject to a schedule that would give one parent custody 68% of the time and the other parent therefore gets custody only 32% of the time.  Some courts, like Wake County, have gone to a presumed 50/50 custody absent certain facts that may make 50/50 custody an unreasonable option.

Contrary to other states, North Carolina does not have a list of factors set by the legislature or the courts to determine what is in the "best interest of the child" per se; however, Judges will typically look at the following factors in making their custody determination:

  • Home environment provided to child by parent (i.e., healthy safe environment vs. unsafe filthy environment)
  • Does one parent have possession of the marital home which will provide stability for the child?
  • Age of the child (a Judge is more likely to listen to what a child roughly 13-17 years old wants in regards to custody than if the child were younger)
  • Substance abuse of either party
  • Violence or other inappropriate conduct occurring to or around the child
  • Education and stability in school 
  • Propensity for criminal behavior by a parent
  • Mental health of both parents
  • Financial stability of each parent
  • Employment of each parent
  • How active and involved a parent is regarding a child's activities and schooling
  • Time each parent has available to spend with the child
  • Other facts the Judge will hear during the course of the proceeding

If a custody action is filed, then both parties will have to attend mandatory mediation regardless of the county in which the suit is filed.

Of course, I would be remiss if I didn't point out that Custody can impact Child Support obligation.  I will talk about that in my next blog post.  

At the end of the day though remember that custody is not about how you can lessen your child support obligation, but how you can positively impact your child's life.  Your decisions should be in your child's best interest, if that means that you need to agree to less time with your child in the immediate future because it will be beneficial for your child then that is a tough decision that you will have to make.  Custody can be modified, but only upon a substantial change in circumstances.  If a child is young there will be multiple circumstances that change which would give rise to a modification of an existing custody order.

Until next time.