Q

How is custody and visitation determined?

A

There is no standard schedule for visitation. A court will grant custody to the parent (or other person in certain circumstances) who will best promote the interest and welfare of the child. This is often referred to as the “best interest of the child” standard.

Q

What is a standard custody and visitation schedule?

A

There is no such thing as a “standard” custody and visitation schedule. Child custody arrangements can take a variety of forms and ideally should be structured to meet the particular needs and dynamics of a specific family.

Depending on the circumstances, the child can live primarily with one parent and have periodic "visits" with the other parent on a regular and consistent basis, or parents can share custody on an equal basis, or follow some other schedule that allows each parent to spend substantial amounts of time with the child. If parents are unable to agree on a new living arrangement for their child, a judge will make this decision for them after conducting an extensive hearing. At this hearing, the judge will attempt to determine what arrangement is in the "best interest" of the child.

Q

What factors does a judge consider in a custody hearing?

A

A judge looks at a broad range of factors when making a custody determination that is in the best interest of the child. These factors may consider:

1. The strengths and weaknesses of each party as a past and potential custodian for the children;
2. The mental, psychological, and physical condition and ability of each party as it may relate to the custodial care for the minor children;
3. The appropriate nature and/or involvement of each party in the minor children’s discipline, feeding, education, leisure time, health care, child care, medical needs, clothing, washing and other matters;
4. The actions or efforts of either parent to alienate, or permit others to alienate one or more of the minor children from the other parent;
5. The preference, if any, of the children for either party as custodian;
6. What type of custody and visitation schedule would serve the minor children’s best interest, considering, among other things, their age and developmental needs;
7. The appropriate length of visits with the non-custodial parent;
8. The effect on the sibling group of a proposed custodial schedule and whether any one on one custodial time should be considered;
9. Any extraordinary needs of the children (such as mental or physical health issues)
10. The efforts of one parent to encourage positive or negative feelings by the children towards the other parent;
11. Any issues of domestic violence (whether it is domestic violence against a parent or the child);
12. And any other factor the judge deems relevant.

Q

What factors are really important to the judge? Are some factors more important than others?

A

It is will all depend on the judge who hears the case. The particular judge who hears the custody case has great discretion in determining what is in the best interest of the child and may be influenced by certain factors, that another judge would find inconsequential. The North Carolina Bar Association recently conducted a survey of district court judges in North Carolina and asked judges to rate the importance of various factors when determining custody. Find out what factors judges consider to be important when determining custody.

Q

What is legal custody?

A

Legal custody refers to decision-making authority for a minor child, including but not limited to, decisions affecting the child’s education, religious training, medical care and well being. Legal custody can be vested jointly in both parents or solely in one parent.

Q

What is physical custody?

A

Physical custody refers to the party with whom the child actually resides. Physical custody can be vested jointly in both parents or solely with one parent. Physical custody is the responsibility of having the children live with you.

The parent with whom the children are at the time has the responsibility for making day-to-day decisions about them. Day-to-day decisions include what the children eat and wear, who they play with and when they go to bed. Usually the parent without physical custody, sometimes called the “non-custodial parent,” has visitation rights, or secondary physical custody. The terminology is less important than how the arrangement works in practice.

Q

My wife and I have agreed to joint custody? What does that mean?

A

This term may refer to either joint legal custody or joint physical custody, or to both. There is no precise statutory definition of joint custody, so parties and the court must clarify what is intended. Often, joint legal custody involves a common joint decision-making arrangement whereby the parents are required to consult with each other on major issues involving the children.

Q

Is custody always awarded to the mother?

A

No. There is no maternal preference in a custody determination. The judge will award custody to the party, who, in the judge’s opinion, will best promote the child’s best interests.

Q

Will the children have to testify in a custody proceeding?

A

A custody dispute can be very stressful and emotional for parents, so imagine how a custody dispute affects a child who loves both parents. Rarely, should a child testify in a custody proceeding. However, there are some extraordinary cases where it is necessary for a child to testify. If a child does testify in a custody proceeding, the child may testify in open court in front of his/her parents; however, the better practice is for a child to talk with the judge in the judge’s office.

Q

Do we have to go to court to resolve the custody dispute?

A

You do not have to go to court to resolve your custody dispute. Custody can be one of the most emotional, unpredictable and expensive family law issues to litigate. When you litigate a custody case, you are essentially putting the decision making authority regarding your child into the hands of a third party who knows very little about you, your child, or your family. Although a judge’s job is to do what he/she believes is in the “best interest” of your child, you and the judge may have very different views on what is best for your child.

To that end, we strongly encourage parents to resolve their custody disputes, and we help parents find creative ways to work out a custody schedule that will serve their child’s best interests and preserve and encourage the relationship the child has with each parent. That being said, we know that not all custody cases can be resolved, and we are experienced in litigating those difficult, high-conflict cases and work hard to provide our clients with the best possible results.

Q

If we don’t go to court, what other options are available to resolve our case?

A

Negotiation, collaborative law and mediation are all great methods to resolve a custody dispute. If you and your child’s parent are able to reach an agreement on a custody arrangement through negotiation, collaborative law or mediation, your arrangement can be made part of a Consent Order or a part of your Separation Agreement.

Q

I know that my case can’t be settled. What is the process for going to court?

A

First, you will file a lawsuit against the other parent for custody of your child. Emotions run high in custody cases and initially most parents believe their case is too difficult or the other parent too rigid and controlling to settle. Even these cases can be settled, and the court system strongly encourages parents to settle their custody claims. Therefore, if you file a claim for custody in Wake County, unless you are exempted for good cause (such as domestic violence, drug abuse, live more than 50 miles from the courthouse, etc.), then both parties will be required to participate in Custody Mediation with a trained, professional mediator before the case can be calendared for trial before a judge. Only the parties may attend this mediation session. The parties’ attorneys may not attend. The mediator, while having no authority to impose a custody arrangement, will attempt to facilitate an agreement between the parties.

If an agreement is reached in mediation, it will be reduced to writing and signed by the judge as an order after the parties are given an opportunity to review the written agreement with their respective attorneys. If the parties cannot reach an agreement, then the case can be scheduled for hearing before a judge, and the parties can begin conducting “discovery” from the other side.

Discovery may include taking the deposition of the other party and other relevant witnesses, requesting documents from the other party, asking questions (interrogatories) of the other side, or requesting that the other party admit or deny certain allegations. This discovery process allows your attorney to prepare your case for trial, learn about the other side’s case, and the strengths and weakness of your case. If the case is going to trial, discovery is necessary, and it can be time consuming and expensive. Depending on the circumstances of your case, a custody evaluation may also be necessary before the case is tried before the judge.

Q

What is a custody evaluation?

A

A custody evaluation is an evaluation that is usually performed by a licensed child psychologist or other mental health professional. A custody evaluation is often necessary in high-conflict cases, or in cases where there is mental, physical or sexual abuse, alcoholism, domestic violence, parental alienation, or when one parent’s ability to parent is questionable. However, custody evaluations can also be helpful in determining a custody schedule even when these kinds of issues may not be present in the case.

In conducting the evaluation, the evaluator may interview the parents, children and other appropriate individuals, or “collaterals” (i.e., teachers, physicians, grandparents, neighbors, boyfriends, girlfriends, stepparents, etc.), conduct psychological testing of the parties and/or children, and make home visits to each parent’s house. The evaluator then makes recommendations for a custody schedule and other recommendations, which in the evaluator’s professional opinion would help the family, such as family therapy, working with a parenting coordinator, communication strategies, transition strategies, etc.

Depending on the issues, a custody evaluation may take several weeks to several months to complete. A custody evaluator’s report can provide the judge and the parties will helpful information in structuring a custody and visitation schedule that will serve the children’s best interests.

Q

I already have a court order for custody but I want it changed. How do I do that?

A

A court may modify a previous custody order upon a showing of a substantial change in circumstances affecting the welfare of the child that has occurred since the entry of the previous order and after finding that a modification of custody is in the child’s best interest. The party seeking the modification has the burden of proving a substantial change in circumstances has occurred.

Q

What if one parent moves out of state? How does that affect custody?

A

The judge still evaluates what would be in the best interest of the child. The judge may consider factors such as:

1. advantages of the relocation in terms of its capacity to improve the life of the child;
2. the motives of the custodial parent in seeking the move;
3. the likelihood that the custodial parent will comply with visitation orders when he or she is no longer subject to the jurisdiction of the courts of North Carolina;
4. the integrity of the non-custodial parent in resisting the relocation; and
5. the likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the non-custodial parent.

If there is an existing custody order in place and a parent then decides to relocate out of state, the move itself will not constitute a substantial change in circumstances warranting that the court modify the existing court order. The judge will have to determine how the moves affects the child and will need to consider the factors listed above in determining if there has been a substantial change in circumstances affecting the welfare of the child.

Q

What if a parent refuses to follow a custody and visitation order?

A

A parent who willfully refuses to follow an order of the court without justification may be found in contempt of court and ordered to follow the visitation order, pay the non-offending party’s attorney’s fees, fined or even incarcerated.

Q

Can grandparents be awarded visitation?

A

Under limited circumstances, grandparents may be awarded visitation. If you are a grandparent seeking visitation, you should consult an attorney to determine whether you can be awarded visitation by a court.

Q

Can grandparents file a lawsuit for custody?

A

In a custody dispute between a parent and a non-parent, the North Carolina Supreme Court has held that the parent will prevail unless the parent is unfit, has neglected the child or has engaged in other conduct which is inconsistent with the parent’s protected parental status. Peterson v. Rogers, 337 N.C. 397 (1994). Therefore, grandparents have the right to sue for custody only if they allege parental unfitness or child neglect.

Q

My son’s father hasn’t seen him in years and hasn’t paid any child support for two years. Can I terminate his rights to my son?

A

A parent who has been awarded custody by a court or who has custody of a child by agreement of the parents may petition the court to terminate the parental rights of a parent who has willfully failed without justification to provide for the care, support, and education of the child, as required by a custody decree or custody agreement. Other grounds exist to terminate a parent’s rights.

However, the courts do not take this matters lightly, and will not terminate a parent’s rights to his/her child without clear, cogent and convincing evidence. A parent whose rights are sought to be terminated must be served with the petition for termination and given an opportunity to be heard on the issues.

Q

If my ex-spouse doesn’t allow me visitation, I don’t have to pay child support, right?

A

Wrong. Child support and custody are independent issues and as such child support may not be conditioned on visitation. However, if your ex-spouse is denying you visitation with your children, you should consult an attorney about options for establishing a court order for custody and visitation.

Q

My wife had an affair during our marriage. She is now unfit to have custody, right?

A

No. Adultery in itself does not make a parent unfit to have custody. Ask yourself: How does her affair affect her ability to parent our child? There must be a connection with wife’s adultery and its effect on the child. A judge may consider whether a parent is subjecting the child to improper influences that are not in the child’s best interest.

Q

When my child is 12, he can choose who he wants to live with, right?

A

No. There is no specific age at which a child can unilaterally make decisions regarding his custody. The basic rule is that the wishes of a child “of sufficient age to exercise discretion” are entitled to consideration by the court, but are not controlling. The bottom line is that the court always has the authority to decide what custody provisions are in the best interest of the child.

Q

I have had some problems during my marriage with depression, and I saw a psychologist. My spouse says I'm crazy and will lose custody of the children. Is that right?

A

The mere fact that you have sought help for the problems you have encountered in your marriage is not a basis to lose custody if it is otherwise in the best interest of the children for you to have it. In fact, the ability to recognize the need for and to get professional help is usually seen as a good sign of maturity and responsible action, both desirable characteristics in a custodial parent.

Separation and divorce are very stressful issues. A good number of our clients have had to seek therapy. Remember that you cannot take care of your children unless you first take care of yourself. It is also important to remember that your children are going through a difficult time and they may also need to see a counselor or therapist to help them during this period of transition.