Child Custody: The Basics

Child custody will be settled between you and your spouse by written agreement or custody will be set out in a court order.  For as long as you don’t have some controlling written document, either you or your spouse could try to change the existing custodial arrangement at any time simply by moving a child’s residence.   Many couples do not understand that without some written agreement or court order, a child is vulnerable to unpredictable disruption in living arrangements and discontinuity.

Such possible disruption even means that either parent would be completely free to move from an existing county of residence or to leave the State of North Carolina with the children, unless the sole purpose for leaving was to evade the jurisdiction of our courts.  Without a written agreement or court order dictating otherwise, the general rule in North Carolina is that each parent has equal rights to the physical possession of a child of the marriage.  Hence, relocating the children — in the absence of a written document prohibiting such a move — is not abduction, unless the motivation for moving with the children is to evade the jurisdiction of the North Carolina courts.

In more than ninety percent of all divorces, child custody never becomes a real issue.  One parent (still usually the mother) has been the primary caregiver throughout the child’s life; and the parties agree that this caregiver should continue to have the child most of the time.  The written document governing custody will usually specify whether this parent, who is getting primary physical custody, will have “joint” or “sole” custody.

Even where there has been an amicable settlement on the issue of a child’s principal residence, parents can get hung up on terminology.  One parent insists she wants “sole custody” and the other parent fights to include the phrase “joint custody” in the written agreement.  This fight over language is often less important legally than the spouses think.  These terms typically refer to a parent’s rights to make decisions regarding the child, with “sole custody” indicating that the parent with possession has most or all of the decisionmaking authority and with “joint custody” tending to indicate that each parent will have some decisionmaking input.   In actuality, however, the terms “joint” and “sole” mean whatever the written custody document says they mean.  You need to keep this in mind as you draft your agreement; you also need to keep this in mind when you start to find yourself in a fight over phraseology.  The terms “sole custody” and “joint custody” have no special meaning in North Carolina except the meaning you give them in an agreement or the meaning a judge gives these terms in a court order.  In other words, it all depends on what else the document says, if anything, about decisionmaking.

If the issue of custody is put before a judge, the judge will render a custody decision based on the “best interests” of the child.  There are many, many factors considered by judges in determining the best interests of a child, most of which are straightforward and self-evident.  Such factors include the mental and physical well-being (or lack of it) of each parent, each parent’s caretaking capacities, the role of each parent thus far in taking care of the child, the age of the child, the child’s relationship to each parent, the time that each parent has available to spend with the child, the environment that the parent can create for the child, the presence of siblings in the family and the siblings’ relationship to each parent and to each other, prior bad acts of either parent (as, for instance, abuse and neglect), parental drug or alcohol problems, religious factors, the willingness of each parent to keep the other parent involved in the child’s life and to facilitate the other parent’s access to the child, and each parent’s adult relationships including non-marital sexual relations.

The factors might also include a child’s preferences about where he or she wishes to live.  In North Carolina, a judge is never required to defer to the parental preference of a minor child.  In practice, as the child gets older and especially when the child is a mid-teenager, the judge may place more weight on the child’s own desires.  Preference will not be the judge’s determining factor.  The determining factor will remain the best interests of the child.

In most residential arrangements for children of divorce, one parent has more custodial time with the children and the other parent has less custodial time, also known as “visitation”.  Visitation refers, in other words, to the custodial time assigned to the parent with whom a child does not primarily reside.  In litigated custody cases in North Carolina, the secondary parent is most frequently awarded alternate weekends, sometimes one overnight during the week or another evening for supper, half of all major holidays, and special days such as Mother’s or Father’s Day and birthdays.

It is quite rare for North Carolina judges to order no visitation for the secondary parent.  In cases where one parent proves the child may be in some danger from the other parent, however, the judge might provide that all visitation will be supervised by either a relative or an unrelated third party such as a social worker in a protected setting.  The supervision may decrease over time, depending on how much the supervised parent’s behavior and attitude improves.

Over the past few decades, there has been a judicial trend toward increasing the number and length of visitation periods for the secondary parent, although different judges in North Carolina have different philosophies regarding this issue.  A few judges believe, for instance, that very young children should remain in one setting most of the time.  These judges would, accordingly, award less visitation to the non-custodial parent, at least until the child is older.   Most judges, however, do not appear to take the child’s age into account when deciding the length and frequency of visitation periods.

If you have to litigate custody, your most important allies in court will be all the people who have observed you interact with your child.  These potential witnesses include relatives, teachers,  doctors, daycare workers, neighbors and friends.  Such witness testimony will be most helpful where the witness has seen your recent activities and interactions with your child, where the witness has made such observations over longer periods of time, and where you and the witness have also talked about your child.

In order to bolster your custody case, then, you want to be as “visible” a parent as you can be.  You will do that by fostering your own relationships with all the people who have meaningful contact with your child.  These are the same people you might call as witnesses on your behalf at a custody trial.   In addition, you may want to secure photographs or videotapes of the rooms of the place where your child would live with you, as well as photographs of its outside spaces.  Such photographs tell the judge more about how your child would be served by living with you.  Photographs and tapes also serve to sharpen a judge’s personal experience of you and your child.  Such engagement might lead the judge to take a greater interest in your side of the custody case.

Some couples are advised, and rightly so, to consider retaining a mental health professional to evaluate the child’s status and developmental needs, as well as the child’s relationships with each parent.   You and your spouse may learn a great deal about yourselves and your child during this evaluation process.  Having learned new things about yourself, your spouse and the child, you and your spouse may be able to consider following the recommendations of an impartial psychological evaluator rather than proceed on with litigation.  The custody evaluator may be any competent mental health professional, including a psychiatrist, psychologist or social worker.  In our experience, the training and ideological background of the evaluator matters less than the evaluator’s understanding of children and family dynamics.  Properly conducted, a custody evaluation may be conducive to settlement short of going on to trial.

In the usual case, the custody evaluator interviews the parents, both together and individually, one or more times.  The evaluator also observes the child and the child’s interactions with each parent; and the evaluator may interview other people who are significant in the child’s life.  It is not unusual for the professional to administer some standard psychological tests.  It may also be helpful to the evaluator to visit the child’s home or to visit the place you are proposing that the child live.  In the interest of objectivity, the professional selected for the custody evaluation should not be a person who has previously treated any member of your family.  We also recommend that each party pay one-half the costs of the custody evaluation, to avoid the appearance that the professional is a “hired gun” for the parent who pays the fee.

Occasionally one parent, or both parents independently, will hire their own expert mental health professional to advocate that parent’s custody position in court.  Judges tend, however, to give less weight to experts who have been retained for the express purpose of being partial to one or the other side.  In fact, some judges will disregard psychological testimony, which the judge perceives to be biased, in favor of hearing what other witnesses have to say about what they have observed in the interactions between parents and their children.  The decision to employ an expert should best be made under advice from an attorney, as such a decision could lead to considerable expense without enhancing the outcome in your favor.