Why should I have a written agreement about custody?

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 fact, 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.

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. 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.

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. Remember that within a separation agreement you have the power to define the custody arrangement that is best for your child, but if a judge has to decide the custody arrangement, you lose your decision making power.

See Relocation of Children in North Carolina for more info regarding moving with your children.


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