Custody In North Carolina – Things You Want to Know
Understanding custody in North Carolina is important to your expectations. Below I have listed some common questions and answers based on the many years I have practiced family law in North Carolina. This is not a comprehensive list, but it does reflect the questions that I am frequently asked.
Q. What can I do to improve my chances of getting primary custody?
A. There is no formula for determining child custody in North Carolina other than the best interests test. However, in order to improve your chances of obtaining custody it is very important that you do not place your children in the middle of conflict with your spouse. You should not refer to your spouse in a bad manner in front of your kids. You should not prevent your spouse from seeing your kids if they currently reside with you unless your spouse poses a real danger to your kids, or a court has issued an order preventing your spouse from seeing your kids. USING YOUR CHILDREN AS A WEAPON TO GET “REVENGE” ON YOUR SPOUSE IS A VERY BAD CHOICE! You should not engage in drug use or excessive alcohol consumption while your kids are with you. You should never have boyfriends or girlfriends or any other person with you whom you have intimate relations with but are not married to spend the evening overnight with you while your kids are present. And of course, acts of domestic violence can not only land you in jail, they can severely hurt your chances of getting custody.
Q. What is the difference between “physical custody” and “legal custody?”
A. Physical custody refers to where the children reside. This is the most common decision that a judge has to make in a custody case. The parent with primary physical custody is the parent with whom the child lives with most of the time and who will make the day-to-day decisions for the child.
Joint legal custody is assumed to be held by both parents in North Carolina regardless of the custodial arrangements. Legal custody refers to a parent’s ability to make choices regarding the child such as health care, passports and access to educational records. Only in rare cases will a court deny either parent legal custody.
Q. How can I change a custody order that has already been entered?
A. Once a court order for custody has been entered, it can only be modified by a court after the party requesting modification has shown that a change of circumstances has occurred since the entry of the last court order that affects the child in a way that would justify a change. This could involve questions of the child’s welfare in the care of the other party, education, relocation or other facts. Learn more about this by reading my post about custody modification. Modifiying a custody order from another state is a more complicated matter that I will address in a separate post.
Q. How does moving affect custody?
A. Obviously, if parents live far apart, custody and visitation schedules will change. A parent who sees a child every other weekend and one night a week will not be able to continue on that schedule if the child moves far away. Either parent may move to modify a custody order if relocation of either is inevitable. In these cases, the court must consider whether the move is in the child’s best interest based on a number of factors including who already has custody, their reasons for moving, the opportunities for the child in the present location versus the new location, ties the child has to the community and family in each area and other factors. The court cannot tell a parent where to live, but they can decide which parent should have custody when all factors are considered.
Q. Can children testify as to which parent they want to live with?
A. Children are generally permitted to testify in custody cases, although it is rarely a good idea because judges typically don’t like it due to the potential emotional trauma to the child. For this reason, it rarely happens. However, under the law, there is no general prohibition against children testifying and the wishes of a child are proper factors for a court to consider. Older children are better candidates to testify than younger ones. In lieu of testimony, the parties may stipulate that the judge speak with children in chambers rather than in the courtroom where the child has to face both parents. In these situations, the evidence is not on the record and the attorneys cannot question the children.
Q. Can I terminate my own parental rights?
Attorney Sam Spagnola is a Board Certified Family Law Specialist with over 25 years of experience in custody matters. He is a custody attorney in Greensboro, North Carolina.