Child Custody in North Carolina is often—and usually best—settled by a voluntary agreement between the parents. Only a small percentage of child custody disputes are decided in a courtroom. When child custody cases actually reach the court, a judge will consider a variety of factors, depending upon the evidence that the parties present. If a courtroom appears to be in your future be sure to read Navigating Basic Court Procedure in North Carolina. The North Carolina child custody statutes provide limited guidance as to how the system actually works, but may provide some useful information. A separate section of the statutes, referred to as the Uniform Child Custody Jurisdiction and Enforcement Act, addresses the jurisdictional issues which arise in custody disputes. A federal law, known as the Interstate Parental Kidnapping Prevention Act, also addresses child custody jurisdictional issues.
In recent years, Grandparents’ rights have become an issue in child custody disputes. Parents often wonder when, if and how their children get to decide which parent they will live with. When a parent fails to comply with the order of the court the contempt statutes can provide a solution to the problem. Our firm sponsors monthly seminars at which our associate attorneys can address some of the many possible issues typically involved in child custody disputes.
Child custody can be settled out of court in the form of a separation agreement.
Of the many issues in domestic law, child custody is perhaps the most emotionally charged. For this reason, it can also become the most expensive sort of litigation that might result from your separation. In most cases, however, couples are able to compromise on custody without forcing this issue into court. In North Carolina you and your spouse may settle issues of custody and visitation by private agreement; custody does not have to be submitted to a judge. Until you both settle, or until a court issues a ruling on custody, remember that the general rule applies: each parent has co-equal rights to the physical possession of a child of the marriage. Unless there is some written document establishing custodial and visitation rights, the custodial arrangements are subject to being changed at the whim or caprice of either parent.
If custody goes to court, you should keep several principles in mind. First, the focus on the best interests of the child in determining with whom your child will reside in essence forces the court to direct its attention principally to you and your spouse The court, therefore, will carefully examine your conduct in the past and, based on your past history, the court will predict how you will behave in the future. The trial judge is given wide discretion in his or her determination. Appellate review is very limited in this kind of litigation, as the courts of appeal are unwilling to substitute their judgment of the facts for the trial judge who presided over the proceedings.
Second, your child may not necessarily participate in the proceeding, even though his or her welfare is the focus of the proceeding. This is so because you, the judge and your lawyers may all agree that appearing in court might be unduly traumatic for your child; or, the child may be too young or fragile to understand what might be asked of him or her. Finally, because the status quo of the formerly intact family will not be sustained due to the dissolution of family ties, rules regarding the burden of proof and other rules of evidence may be relaxed in a custody trial. Thus, the process might even see the judge assuming a more inquisitorial role than usual.
Case law, North Carolina General Statutes sections 50-13.1 through 50-13.9, and Chapter 50A of the statutes, the latter known as the Uniform Child Custody Jurisdiction Act, provide the parameters for judicial actions regarding child custody. Any parent, relative, or other person, agency, organization, or institution claiming custody of a minor child may bring an action in court. Filing a complaint, counterclaim, or motion in the cause in a prior pending action are the usual methods for putting custody before the court.
1. Welfare of the child. The dominant principle in all child custody actions, including actions to modify custody, is that custody will be awarded to the person or institution who “will, in the opinion of the judge, best promote the interest and welfare of the child.” This language from the statute about the judge’s opinion gives the judge an enormous range of discretion as to the factors the judge actually considers as bearing on the child’s best interests and as to the weight the judge assigns to each of these factors.
The factors considered by the court are multiple and various. The judge can consider all those things that might impinge on the development of the child’s physical, mental, emotional, moral, and spiritual faculties. In considering the child’s developmental needs, the judge would take a child’s age into account. The judge can consider the child’s preference, but the judge is never required to do so. The judge can consider each parent’s caretaking capacities and the home environment that each parent could provide to the child. The judge can consider the time available to each parent to be with the child, as the judge may wish to maximize the child’s time with a parent as opposed to a babysitter or daycare center. The judge can consider the child’s bonding with each parent and with other siblings, if there are any. But remember that the weight the judge gives to any of these factors is completely within the judge’s prerogative.
2. A parent’s right to custody. The right of a parent to have custody of his or her minor child is substantial and, while not absolute, cannot be interfered with unless the best interests of the child clearly demand it. Thus, as against other relatives and third parties, a child’s natural parent is entitled to the custody and care of the child in an initial proceeding for custody, absent a finding of unfitness. However, where the relationship between the child and a non-parent better promotes the child’s welfare than does the relationship between the biological parent and the child, a judge has some latitude to award custody to the non-parent. This will happen, however, in very few contests between a natural parent and a third party.
Most custody battles, of course, are not between one parent and some non-parent relative or third party. Most custody fights are between the child’s biological parents. As between the parents themselves, our statute also makes it clear that there is no presumption favoring either the mother or the father. North Carolina has abolished, as have many other states, the maternal preference, which was a presumption that the mother would be most capable of caring for a child during its earliest childhood years. This presumption was commonly known as the “tender years” doctrine. However, the mere abolition of the tender years doctrine does not mean that the mothers of young children are out of luck in custody fights. To the contrary, quite a number of North Carolina judges are still strongly inclined to favor the mother while a child is very young, most especially when the mother has been the child’s primary caregiver all along.
3. Wishes of the child. Our North Carolina cases provide that the wishes of a child of “sufficient age to exercise discretion” are “entitled to considerable weight” in a custody case but the child’s wishes are not controlling. Although other states hold to various ages at which the child’s testimony on this issue becomes relevant, the test in this state is whether the child has sufficient mental capacity and comprehension to offer a reasoned opinion about where he or she wants to live. The testimony of a child who is competent to testify on this issue might be heard in open court. However, it is often preferable for the interview to be conducted in chambers. An interview between the child and the judge in chambers can be arranged through use of a stipulation between the parties.
4. The trial court’s discretion. A judge, not a jury, hears child custody matters in civil district court. Because the trial judge has the opportunity to see the parties and witnesses firsthand, the judge may exercise broad discretion in making a custody determination. The lesson here is to know one’s judge prior to trial and to understand the judge’s predispositions, if any, regarding awards of custody. In some counties in North Carolina, the parties have flexibility in their choice of a judge to preside over the custody hearing. In other counties, judges are assigned and the parties have little or no choice in the matter.
The trial court has the power to award custody to both parties about equally, or to give primary custody to one party with visitation privileges to the other. In actual practice, however, North Carolina judges very rarely split the time a child resides with each parent in a way that approximates one-half of the time to each parent. The reason for this may well be a judicial unwillingness to believe that parents who are in court fighting over custody will be able to cooperate about anything regarding the child. Joint custody in the sense of equal time sharing would require the greatest amount of cooperation between parents. Thus, the most common custodial arrangement ordered by a judge will be primary physical custody in one parent (which might be “sole custody” if that parent is also given most decisionmaking authority), with the child having secondary time with the other parent.
The non-custodial, secondary parent’s time with the child is commonly referred to as visitation. Visitation is viewed in North Carolina as a lesser version of custody. Hence, the same principles apply to custody as to visitation in regard to the best interests of the child, parental rights, the child’s wishes, and the discretion of the trial judge. It almost never happens in North Carolina that the non-custodial parent is denied any visitation time with a child.
If the judge is persuaded, however, that a child may come to some harm or danger if visitation is not monitored, the judge can order that visitation be supervised. Supervised visitation sometimes occur in the visiting parent’s home. The supervisor in such a location might be another relative, a family friend or even a social worker. Supervised visitation might occur in an even more protected setting such as the offices of a physician or mental health professional. If visitation begins as supervised visitation, the order may provide for a phase-out of supervision once the suspect parent has proven him- or herself to be more reliable or consistent around the child.
Although many clients think they can tie child support payments to visitation privileges, it is important that you understand that the one is legally independent of the other in terms of either unilaterally withholding support or suspending visitation. Thus, for example, if one party has not received the appropriate child support payment, he or she may not independently decide to bar the other from exercising any visitation rights. There is no supportable legal foundation for such a move. In addition, such retaliation can potentially impair your child’s welfare.
The timeline for bringing claims or motions for child custody and visitation is long, stretching throughout a child’s minority. The child custody action can be brought either independently or it can be joined with an action for absolute divorce, divorce from bed and board, annulment, or alimony without divorce. With regard to absolute divorce, the custody action may precede or follow the divorce action; or it make also take place during its pendency. If the action for custody is brought independently, the contesting parties must already be separated or there must be a pending claim that would lead a judge to remove one parent from the parties’ residence. Custody will not be decided if the family is remaining intact.
Even though the North Carolina courts maintain jurisdiction over minor children at all times for purposes of custody and support, you and your spouse may nevertheless contract with respect to custody. This possibility for avoidance of court proceedings often allows for an amicable resolution of difficulties between separating parties and assists the child in adapting to his or her new way of life by sparing the child and the parties the trauma of litigation. A properly drafted separation agreement would also provide you and your spouse with the flexibility to effect your own modifications of the custody portions (or any other portions) of the agreement through further written amendment.
However, future modifications to a previously established written custody arrangement may not be so easy. That will depend on whether you and your spouse agree over the subsequent modification. If parents cannot agree in the future to a change that one parent or the child wants, the court would become involved if the dissatisfied parent sued. In such a case, where the parties had not previously litigated but had settled custody by prior written agreement, the court would make its own initial determination of custody and visitation without either party’s having to show changed circumstances affecting the welfare of the child. The court’s initial determination would be based, as always, on the child’s best interests.
Within a separation agreement, the parties may agree to have the contract incorporated into a later divorce decree. If the agreement is incorporated, it becomes akin to a consent order and is modifiable and enforceable as a court order. This means that an incorporated agreement, unlike an unincorporated agreement, would be enforceable through contempt and it would also be modifiable without the parties’ consent based on one parent’s showing of changed circumstances detrimentally affecting the child. There are, however, some counties in North Carolina in which judges regularly decline to incorporate a separation agreement regarding custody into a divorce decree when the only claim ever filed has been solely for absolute divorce.
The fact that there is a custody order does not end the matter forever. As already mentioned, an order awarding child custody may, subject to the court’s having proper subject matter jurisdiction, be modified or vacated at any time upon one party’s motion and a showing of changed circumstances by the interested party. “Changed circumstances” are changes affecting the child’s welfare both positively and adversely. The changes must, moreover, be substantial for the prior order to be modified.
The burden of proof in custody cases is by the greater weight of the evidence, as in most civil cases. The evidence, to support your claim for custody, must therefore show how your behavior and abilities will further your child’s overall development and welfare better than your spouse’s behavior and parenting abilities would do. In general, the parent with the best caretaking history or caretaking potential will be the parent preferred by the judge, provided that that parent and the child have a satisfactory relationship. But the judge will consider all the many common-sense factors enumerated here to determine which custodial placement is in the child’s best interests.
When embarking on a custody battle, you should also remember that it is never too late to become a good parent. Put more bluntly, if you can modify your less desirable behavior with respect to the child in positive ways or do additional things to make the grade, you should begin to implement those positive changes immediately. Recent, more extensive involvement with the child, for example, can help ameliorate a history of infrequent closeness.
Recent contact is also important with regard to the witnesses you have testify on your behalf. Witnesses should be chosen on the basis of not only their own involvement with you and your child and their possible expertise on your child’s needs, but also on the basis of the recency and frequency of their contacts with you and your child. You are much better off with witnesses who have seen you and your child a lot over the past year than with witnesses who have not seen you and the child together in the last three years or who have seen you and the child only very occasionally. You should consider a variety of people as possible witnesses: family members, social workers, daycare providers, psychologists or psychiatrists, teachers, extracurricular activity leaders, ministers, pediatricians, parents of playmates and neighbors to name just a few.
In close cases, it may be desirable to have a psychologist evaluate both parties and/or the child. If possible, it is best to have one professional do all of the evaluations to provide a uniform standard and level of continuity. This process is generally known as a “custody evaluation.” You and your spouse could agree to a custody evaluation if you both believed it would help you resolve the custody issue. If you cannot so agree, one of you may move the court to require the examination and to appoint its own psychologist to advise the court. Bear in mind, however, the potential expense associated with the decision to have a custody evaluation conducted. Plan to interview prospective custody evaluators carefully regarding their fee schedules, if you have some choice in the selection of the evaluator.
Our statutes also authorize a court with appropriate jurisdiction to enter temporary orders providing for the custody and support of children. Such orders may be entered in order to provide continuing stability in a deteriorating situation, to preserve the status quo, to prevent a child’s removal from the jurisdiction, to return the child to an appropriate custodian, and/or to protect the child from harm, neglect or abuse. Emergency temporary orders may be entered ex parte upon a verified pleading or affidavit. “Ex parte” means that only one side tells the court its version of events, for the reason that the other side has not yet been given the opportunity to address the court.
Such an ex parte order does not fully satisfy the due process requirements of the U.S. and state Constitutions. Therefore, the court must review a temporary emergency custody order within ten days, at which time the other side has the opportunity to present his or her own evidence. After the court has heard the evidence from each side, the order will be continued (kept in force), modified, or terminated (dissolved).
North Carolina’s Uniform Child Custody Jurisdiction and Enforcement Act requires that any party, any parent whose parental rights have not been terminated, and any person who has physical custody of the child must receive reasonable notice and opportunity to be heard before the court can make a non-emergency award of custody. Motions for custody in an already pending action may be made on ten days’ notice to other parties. However, the full ten days’ notice of the hearing to review an ex parte temporary custody order need not be given.
The district court’s jurisdiction over custody continues from the time it obtains jurisdiction over a child until jurisdiction is terminated by the court or the minor reaches eighteen or becomes otherwise emancipated. Once the court steps in and assumes jurisdiction over child custody, the parties may lose their previous freedom to contract as they please with regard to custody issues. Thus, if the parties wish to effect an agreement, they may only do so through a consent order rather than a contract so long as litigation is pending. If they wished to put their agreement only into a contract, the litigation should be voluntarily dismissed.
An order awarding custody is enforceable by civil contempt proceedings and disobedience to a court order can also be addressed in criminal contempt proceedings. Civil contempt can also be used as an enforcement measure during the pendency of the appeal of any order for custody.
Our statutes allow, but do no require, the trial court to make an award of reasonable attorney’s fees in a custody action. An award of fees requires that the court find the interested party to be acting in good faith and to have insufficient means to defray the expenses of the suit. Such an award is not limited to the prevailing party.
Like decrees as to future child support payments, custody decrees are always capable of being modified and thus do not meet the finality requirement for full faith and credit. To combat parental kidnapping done in an effort to attain a new custody decree in another state, North Carolina has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The UCCJEA is an attempt to bring to the nation a set of standardized jurisdiction and enforcement rules; and a version of this Act has been adopted in every state. However, it is wise to compare the Act as adopted in another state, if it is relevant to your case, to determine if there are idiosyncratic modifications of the act by that particular legislature.
The UCCJEA provides four bases for jurisdiction over child custody matters. This state has jurisdiction 1) if it is the state in which the child lived for the six months immediately prior to the custody proceeding, i.e. the “home state”, or if the state had been the home state and the child is now absent because he or she has been removed by the individual seeking custody; or 2) if it is in the child’s best interest because the child and one or both parents have a “significant connection” with the state and evidence relevant to the child’s present or future care, training, and relationships is available within the state; or 3) if the child is physically present in North Carolina and has been abandoned or an emergency situation exists; or 4) if no other state would have jurisdiction under the UCCJEA, or if another state has declined jurisdiction and it is in the child’s best interest for North Carolina to assume jurisdiction.
Certain limits on jurisdiction also exist. The court must refuse jurisdiction if there was a pending custody action in another state when the petition was filed in North Carolina, so long as the other state’s exercise of jurisdiction conforms to UCCJEA requirements. Declining jurisdiction is also appropriate if the petitioner has violated another state’s custody decree unless the child’s best interests require that the North Carolina court take jurisdiction despite this violation. The North Carolina court also has the discretion to decide to refuse jurisdiction if the petitioner in an initial action has taken the child from another state wrongfully or North Carolina is an inconvenient forum for the action. With regard to the issue of modification of an existing custody decree, a court with jurisdiction may not modify the decree of another state unless the latter has lost jurisdiction or has refused to exercise it.
The Parental Kidnapping Prevention Act of 1980 (PKPA) adopted by Congress also establishes standards regarding appropriate exercise of jurisdiction over custody matters among the states. The standards are much the same as those promulgated in the UCCJEA. However, under the PKPA, home state jurisdiction is paramount. Due to the Supremacy Clause in Article VI of the U.S. Constitution, when there is a conflict between the PKPA and a state’s UCCJEA, the PKPA as federal law overrides the UCCJEA.