North Carolina General Statute section 50-13.1 establishes actions for custody in North Carolina. There are a number of ways that custody can be agreed upon by the parties. I talk further about that here.
What are the Different Ways to Agree Upon Custody?
For starters, parties can always settle upon a custody arrangement via a separation agreement. That is by far the preferred method of establishing custody.
If a separation agreement is out of the question, then a party will have to file suit. The good news is that North Carolina requires the parties to attend mediation. Obtaining a waiver for mediation is possible, but there better be a good reason for the waiver request. If you agree on a custody schedule through mediation the mediator will draft the consent order and it will become an enforceable court order.
I Couldn't Avoid Court, What Should I Know About Custody in North Carolina?
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.
What is Physical Custody and Legal Custody?
Physical Custody means the physical care and supervision of the child. Legal custody is basically decision making authority.
How Much Physical Custodial Time is Usually Awarded for Each Party?
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
Of course, I would be remiss if I didn't point out that Custody can impact Child Support obligation. You can find more about Child Support here.
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.
The most stressful part of any separation and/or divorce is child custody. My purpose for this blog post was to try to make sure that you, the reader, understood 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.
Until next time.
*Nothing in this blog post is to be taken as establishing an attorney-client relationship. This blog post is not to be construed as providing legal advice.