In The Best Interest Of The Child

Child custody in North Carolina is often ­ and usually best ­ settled by a voluntary agreement between the parents. In fact, only a small percentage of child custody disputes are decided in a courtroom. Even so, there are a lot of issues to consider ­ practical, financial and emotional. To help get you started, here are some answers to a few basic questions.

Q: Why do I need a written agreement?

A separation agreement gives you the power to define custody arrangements; if you and your spouse can’t reach an agreement, you put that power in the hands of a judge.

Plus, unless there is some written document establishing custodial and visitation rights, the arrangements are subject to change at the whim of either parent. You or your spouse can try to change the status quo at any time simply by moving. Your spouse could even leave the state ­ as long as he or she wasn’t moving specifically to evade court jurisdiction ­ and it wouldn’t be considered abduction.

Q: What if we really just can’t agree?

Then the court will decide for you. The judge will consider a range of factors: the age of the child (or children), the time each parent can spend with the child, the stability of the parents, abductions, child abuse and neglect, drug and alcohol problems, religion, non-marital sexual relationships…. In other words, a big part of your life will be fair game, and past history can be used to predict future behavior.

Q: So what does the judge base the decision on?

Plain and simple: what’s best for the kids. Custody will be awarded to the person who “will, in the opinion of the judge, best promote the interest and welfare of the child.” This legal language gives the judge enormous flexibility in considering and weighing all the various factors.

Q: Can’t my child decide who to live with?

In North Carolina, the wishes of a child of are “entitled to considerable weight” ­ but they aren’t the final word. In practice, as the child gets older, the judge may place more weight on his or her desires; still, the determining factor will remain what the judge feels are his or her best interests.

Q: What are joint custody and sole custody?

In general terms, “sole custody” means that the parent with possession has most or all of the decision-making authority; “joint custody” usually means that each parent will have some input. In reality, however, the terms “joint” and “sole” mean whatever the written custody document says they mean ­ it all depends on what else the document says, if anything, about decision-making.

Q: If we share custody, does anyone pay child support?

Yes. In North Carolina both parents are responsible for paying child support and there will always be a payment, except in the unusual case where both parents have exactly the same income and spend exactly the same amount of time with the children.

Q: Can I refuse to allow visitation if child support isn’t paid?

No. Legally these are completely separate matters ­ and this kind of retaliation can be very hard on a child.

Q: Can I date?

Sure ­ but: logical or not, your spouse’s discovery of your interest in another person could cause a custody settlement to unravel. For instance, your spouse could try to use the presence of a new person in your life as a “weapon” against your gaining custody, or even continuing to have custody. It’s true that appellate courts in North Carolina have overwhelmingly rejected this sort of attack ­ but if your spouse could show that your dating led to neglect or inattention to your child, your position in a custody dispute could be greatly weakened.

Q: If I have to go to court, what kind of witnesses will I need?

Your most important allies will be the people who’ve seen you with your child: relatives, teachers, doctors, daycare workers, neighbors and friends. Testimony will be most helpful when they¹ve seen you with your children recently, seen you together over a period of time, and talked with you about your children.

Q: Okay, so I haven’t been a terrific parent. What can I do to improve my chances of gaining custody?

It’s never too late to become a good parent. If you can modify your less desirable behavior with respect to the child, or do additional things to make the grade, start making those positive changes immediately. Recent, more extensive involvement with the child, for example, can help counteract a history of infrequent closeness.


Rosen attorneys are available for consultations by both phone and video conference – call 919-787-6668 for more information.Learn More
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