Hi. I’m Lee Rosen. Today we’re going to talk about child custody in North Carolina.
And the first thing that I want to tell you is that you really ought to be talking to a lawyer in person about your child custody situation. Don’t make decisions about child custody without having information from an objective and informed source. You really, really ought to consider sitting down with a lawyer. This is too important not to.
The issue of child custody is complicated by the level of emotion that people attach to dealing with our children. You know, child custody issues can be very stressful and sometimes we make poor decisions when we’re under a great deal of stress, when we feel threatened by the loss of our children. This is a very difficult issue.
A child custody dispute can be resolved in one of two ways. It can either be resolved by agreement or by a judge when the parents can’t agree. Keep in mind that 9 out of 10 people agree on what it is that they’re going to do with their children. It’s really only a small segment of people that actually end up in a courtroom. But strangely, people spend most of their energy worrying about what would happen in court and really not very much energy at all thinking about how they can get this issues resolved by agreement. An agreement needs to be your focus; that’s the way most people work this issue out.
Now, I’m going to talk a fair amount today about how judges resolve the issue of child custody. And you need to know what a judge would do if you were to be in court because knowing what a judge will do will help you to make a reasonable agreement with the other parent. And so these standards the judge has set and the ideas that they have about how custody should be resolved have a big impact on how things work out between Mom and Dad.
But — and this is important — please don’t let the fact that I’m talking about what a judge would do distract you from your objective of settlement by agreement. Remember that I’m explaining what judges do in order to help you determine what’s reasonable. I’m not, however, encouraging you to have your case resolved by a judge. That’s the last thing you want to do.
Now, the first thing you need to know about child custody is the terminology. There are three terms that come up over and over in these cases. One is sole custody; one is visitation; and finally, there’s joint custody. The most difficult part of this whole custody arena is that these three terms mean one thing in a court order and they mean something different in a separation agreement. That’s confusing. It’s very difficult when we use the same words and give them different meaning depending on what document they’re in. So let’s run through them.
First of all, let’s talk about court orders. When we use the term “sole custody” in a court order, it means control. If you have custody of a child, you make the decisions. You get to decide where the child will go to the doctor, where the child will go to church, where that child will go to school. If you have custody, you call the shots. You are the parent making the decisions.
When one parent has custody, the other parent typically has visitation. Now, I will tell you a lot of people come to me with the belief that their spouse or the other parent should never have visitation with the child. And I can tell you that that very, very rarely happens. That’s only in the most unusual, awful situations where a parent who does not have custody doesn’t get visitation. In instances of great physical abuse or sexual abuse, you might see a judge order limited or very restricted visitation. But in the typical case, in almost every case, there’s always visitation.
Sometimes in those difficult cases we’ll have a judge order what’s called supervised visitation, where a judge will appoint a third party to come to the visitation and to supervise that parent and to make sure that things are going smoothly. But in almost all other cases we’re going to have visitation on a fairly regular and routine schedule.
Now, what will a schedule look like? What will a visitation schedule be like? That varies around the state. It even varies within the same county. Some judges will do it one way; some judges will do it another. It just depends on that judge’s personal beliefs about how visitation ought to work and it depends on the facts of your case.
Let me tell you about a fairly standard visitation arrangement that you’ll see from a lot of judges all across North Carolina. It’s this alternating weekend arrangement where one parent will have the child the bulk of the time and the other parent will have the child from, say, Friday afternoon until Sunday afternoon. That parent with visitation will usually also get one, sometimes two nights a week for dinner, say a Tuesday night and a Thursday night from maybe 5:30 or 6:00 until a half an hour before bedtime. That schedule happens with some frequency.
But there are lots of other schedules. It’s not extraordinary to see a judge divide the child’s time equally between the parents, using one week with one parent and one week with the other. It very much depends on the facts of the case and the perspective of the judge.
The visitation schedule usually also includes alternating holidays. And the holidays the judges are usually thinking about are spring break from school, Thanksgiving, Christmas. Usually a week at Christmas for each parent. Thanksgiving is usually alternated from year to year and spring break is usually alternated.
Judges will also give the visiting parent some time in the summer. And across the state you’re going to see a great variation in this. Some judges will give as little as a week or two and some judges will give as much as four or even six weeks. So there’s a lot of variation as we look at different counties as to how summer visitation is worked out, and visitation generally.
Now, we’ve talked about sole custody in a court order and we’ve talked about visitation in a court order. Finally, let’s talk about this term “join custody.” What does that mean in a court order?
Joint custody is not defined by our statutes, by our laws in this state. So if a judge wants to order joint custody, that term means whatever that judge says it means for your family. And different judges are going to give it different meanings. Typically, what judges say it means is that Mom and Dad will work together to make big decisions. They’ll work jointly on education issues, religious issues, health issues, that sort of thing. And the parent who has the child at the moment will make the day-to-day decisions, things like bedtime routine, meals, what’s happening throughout the day and what are the activities going to be. Those things are going to be decided by the parent that has the child on that day.
But a judge can do whatever they want to do in terms of calling joint custody whatever they want it to be. And it varies a fair amount.
Now, the schedule for joint custody most typically is just like the visitation schedule that I described a minute ago. Merely calling a custody arrangement “joint” usually only affects the decision making; it doesn’t usually affect the scheduling. So in most of the orders that I’ve seen where a judge says, “I’m going to order you to work together to make these decisions,” the schedule will be a lot like the schedules I described earlier.
Now, I want to tell you that I see a fair number of judges ordering joint custody, but it’s not the majority of cases. People that end up in court in front of judges usually make it pretty clear that they don’t work together very well. If they did work together well, they wouldn’t be in court fighting about custody. So these are people that don’t get along or they wouldn’t be there in the first place. And the judges are hesitant to award joint custody unless they really see something in that family that makes them think that it might work. And some judges see it in some families and they’ll do it.
So that’s the terminology in a court order.
Now, what do these same three phrases — sole custody, visitation, and joint custody — mean if, instead of finding them in a court order, you find them in a separate agreement? This is important because 9 out of 10 people will have a separation agreement, not a court order.
Those terms in a separation agreement really don’t have a lot of meaning. They’re not usually enforced if they’re in a separation agreement. And what I mean is this. If Mom and Dad have an agreement, an arrangement for custody, and they call it sole custody to one parent and visitation to the other, and if there’s a breakdown — if the parents no longer can abide by the agreement or if they’re no longer happy with it — then what usually happens is not that a parent goes to court seeking to enforce the terms of the separation agreement. What usually happens is that the parents go to court seeking a court order on custody, a brand new court order.
And what the judge is going to do at that point is listen to all of the evidence and make a decision based on the facts of the case. The judge is not going to get terribly involved with the old separation agreement. And the words in that old agreement won’t mean a heck of a lot of anything to the new judge making the decision. The judge is far more interested in what’s been happening than what it is that was written down.
So when you’re drafting a separation agreement, whether you call things joint custody or sole custody or visitation just doesn’t make that much difference because it’s probably not ever going to be in front of a judge being enforced.
And so what I would encourage you to do is focus, when you’re drafting a separation agreement, on the schedule, not on the labels, not on the words that you put in that schedule. It just doesn’t matter very much. Stay focused on the schedule and be sure that it works for you and for the other parent and for the child. Put your energy into that and don’t get bogged down with a big fight about the words “joint custody” or “sole custody” or any other words that you might choose to use. What matters is the schedule.
Now, that’s our discussion of terminology. Let’s shift gears and let’s talk about the things that judges think about, the factors that they think about when they have to make a custody decision.
You should know that all of the things that judges think about in a custody case are common sense sorts of things. This is a tough job. This is not a pleasant thing to have to make decisions about other people’s children. Nobody wants to have to make decisions about the best interest of somebody else’s child. It’s really difficult to have to do this. And so what our judges do is they use the same sort of common sense thinking that we would use.
The law says very little. What it says is that the judge should do what’s in the best interest of the child. Oh, it also says one thing about domestic violence. There’s one little statute that says if there’s violence the judge should consider it. But that’s it. That’s the law.
So when a judge is supposed to do what’s in the best interest of a child, we’ve got to talk about what things judges think about, what they think are important. And you will not be surprised by any of these things. These are the things that you would have thought of if you were making a decision about someone else’s child.
So what are they thinking about? What are the factors? What are the important things? And I will tell you that I base all of this on my experience trying custody cases. I’ve come to believe that certain things are important and that certain things aren’t.
Fundamentally what’s important is trust. A judge wants to know that if you have custody of this child that you can be trusted to do a good job. And so in order to determine who can be trusted, the judges look at lots of things. They look at things like domestic violence; has that been going on? They look at things like mental instability; is either parent in a difficult mental/emotional position? What about physical instability? Is one parent sick a lot and unable to care for the child? That’s going to be a factor.
They look at who’s taking care of the child. Who is that primary caretaker? If either parent plays that role in the absence of the other parent, that’s going to be a big factor. Who gets the child fed and bathed and dressed and makes sure the child goes to dentist appointments and doctor appointments? Those are going to be important factors. Who’s really taking responsibility for the child?
Now, another thing that comes up is who has time to be with the child? If one parent is working all the time and the other parent is available, that’s going to be a factor. Judges like to keep siblings together if they can; that’s important.
Judges will also consider the preferences of a child. If a child is old enough and mature enough — and usually that’s in the 10, 11, 12 age range — then the judge will hear from the child. If the parents want to let that happen, the judge will factor that into the decision making process. The 10 or 11 or 12-year-old doesn’t have the right to make that decision; that’s what judges are for. But that older child’s wishes will become a part of how the judge makes that decision.
If one parent is moving away, relocating, that’s going to be a big factor. Involvement in alcohol abuse or drug abuse, that’s going to be a factor. Judges like to place children with parents that cooperate, that work together with the other parent to raise the child. If one parent has shown themselves to be more cooperative, more willing to work together, then that parent has an advantage.
They look to see if either parent is undermining the relationship between the child and the other parent. If, for instance, one parent interferes with visitation or cuts off telephone contact or runs and hides with the child without a good reason, that becomes a factor.
Judges look at involvement in activities — school activities, extracurricular activities, religious activities. Judges will look at all of that and see what the parents’ involvement is. That will all be a factor.
Judges will look at adultery or dating. If one spouse is involved in a non-marital sexual relationship, then that can be a factor in these cases.
The bottom line, when you distill all these factors down to one word, it’s what I said earlier. It’s trust. This judge has to feel in their heart that you are the person that they can trust to raise this child. And that’s what it takes to win a child custody case.
The last thing I want to tell you about custody is the secret to winning one of these cases. And there really is a secret that goes beyond trust. I really think there are two secrets that are awfully important to know.
The first one is this. And it seems trivial but it’s not. It’s that going to court in a child custody case, while for you it’s going to be one of the most interesting things you’ve ever had to live through, for a judge who does this day after day it is excruciatingly boring. There’s testimony about who brushes the kid’s teeth and who tucks the child in at night and who reads the bedtime story and how many soccer games Mom went to and how many dentist appointments Dad went to. Anything you can do to make this case more interesting, do it. Anything you can do to help that judge to keep paying attention, do it. It will make a difference.
And so I would suggest to you that you find anything tangible that you can show to the judge, anything that will make this case a little more interesting than you talking about it — pictures, videos, things from school, cards, letters, anything at all, any kind of evidence. Pull it together and put it somewhere and protect it so that you’ll have it available to show to the judge. I’d suggest that you take all of this stuff and put it somewhere safe like your lawyer’s office or your friend’s house. Lock it up, put it away. Don’t hide things in your own house if you’re saving them for a custody trial. If you do that, it’s going to be found and it’s only going to make things worse, not better, if the things don’t disappear.
So gather the stuff up, put it away, because the more you can do to make your case interesting, the better. It will help the judge to be able to really focus on what’s going on when your side is presenting their evidence.
Secret number two, the other one, to winning one of these cases relates to this. I guess it’s sort of a riddle. You’ve all heard it. It’s the one where if a tree falls in the forest and there’s no one there to hear it, does it make a sound? If you take that and you analogize it to a custody case, it becomes this question: If you’re a great parent and nobody knows you’re a great parent, are you really a great parent? And I will tell you, having tried a lot of custody cases, that if nobody knows that you’re a great parent, then as far as that judge is concerned, you’re not a great parent.
Because here’s what happens in a custody trial. Mom comes in and she says, “I’m a great parent. Dad’s not.” Dad says, “I’m a great parent. Mom’s not.” The judge doesn’t know who to believe. The judge has no idea when Mom and Dad directly conflict in their testimony who’s really telling the truth. And there’s always this difference of opinion in every one of these cases.
So the people that make a difference, the people that really will impact the outcome of your case, are the people that have seen you parent your children. The daycare center person that can say, “When this parent drives up, that child’s eyes light up. You can see the love in that child’s eyes as she runs across the yard and jumps into her parent’s arms.”
Or the nurse at the doctor’s office that can testify, “Whenever that child’s sick, this parent takes time off from work and brings the child in and makes sure the child is taken care of and then stays home with that child to make sure they get well.” That makes a difference. How about the neighbor that can say, “I see that parent out in the yard every afternoon playing catch with that child.”
All of those friends and relatives, all of those people who know about your parenting, those are the people that make a difference to the judge. So you don’t want to be an invisible parent. If no one knows you’re a great parent, then you’re not. You need to be visible. And the really good news about that is that you can become more visible.
A custody case is not about a moment in time. It’s about a lot of moments. It’s about a lot of time. And if you’re thinking about the idea of being in court one day about child custody, you’ve got a lot of time between now and that day. Custody cases drag on forever. The court date will be a long time in most people’s future. You might have six months from the day you file before you get to court. You might have a year. It takes a long time to get ready and try a custody case. And so as that time goes by, you can be a great parent.
You can be more visible while you’re being a great parent. You can be involved in Cub Scouts or Brownies. You can be involved in visiting at the school or volunteering to chaperone a field trip. There are so many things you can do that will make you not only a better parent but will also help your custody case because you’re increasing your visibility and you’re developing more witnesses.
So those are my ideas about child custody. There’s lots — lots and lots — of information about custody on our website and I would encourage you to take a look at it.
There’s also information on the website about all the other issues that we’re dealing with. Take a look at that, get lots of information. But most importantly, about this issue in particular, you really ought to be talking about your situation directly with a lawyer. You need to get that independent, objective feedback so that you can make the best decisions. Good luck.
I’m Lee Rosen for the Rosen Law Firm.