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Child Custody

Child custody disputes are among the most emotionally-charged and difficult issues faced by parents or guardians. Although the determining factor in North Carolina for making custody decisions is “the best interest of the child,” these disputes have the potential to significantly harm the child if not handled by experienced Raleigh child custody attorneys. Providing adequate support for children is also one of the most important concerns of any parent, which is why it is crucial to speak with experienced child support attorneys to ensure that the financial outcome is appropriate for your child. If you are involved in a child custody and/or child support dispute in Raleigh, or believe you may in the future, please contact the law firm of Cheshire Parker Schneider & Bryan.

Below are answers to commonly asked questions in these, often confusing, areas of the law:

Who is Entitled to Custody?

In order for a court to grant custody, the court must find that the custodian is a fit and proper person to have custody and that custody with that person is in the best interests of the children. There is not a presumption favoring mothers over fathers. All other things being equal, mothers and fathers have equal rights to the custody of their children. There is a presumption favoring natural parents over third parties, such as grandparents, aunts, and neighbors. Natural parents have protected rights to parent their own children. However, natural parents can lose those protected rights if they take action that is inconsistent with the best interests of the children or if they allow third parties to develop a parent-child relationship with their children.

What is Sole Custody?

Sole legal custody means that one person has sole decision-making power over a child and typically has primary physical custody of that child.

What is Joint Custody?

Joint legal custody means shared decision-making power over a child. It does not mean shared physical custody of the child. Joint custody means shared decision-making power over a child and shared physical custody of the child. It does not necessarily mean equally shared physical custody. When parents have joint custody, they share in major decisions about a child, and often each parent has the child more than every other weekend. For joint custody to be successful, the parents need to be able to communicate effectively and to cooperate in parenting their child together.

How is Custody Determined?

Custody may be agreed upon by the parties. If it is, the parties may set out the terms of their custody agreement in a Separation Agreement or Parenting Agreement that is not usually filed with the court or in a Consent Order that is filed with the court. If the parents are unable to agree on their own, they can try mediation or arbitration. If they do not want to try alternative dispute resolution, they can go to court to let a judge decide, but in most Districts they will be required to attend mediation through the court system before they can be heard by a judge.

What are Visitation Rights?

If one parent has custody, the other has the right to have visitation with his or her child. There are no general rules about when and how much visitation the noncustodial parent should get. That depends on various factors including ages of the children, the children’s schedules, how far apart the parents live, and the work schedules of the parents. When determining a visitation schedule for the noncustodial parent, the parties (or the Court) should consider weekdays, weekends, holidays, and summer. As with custody, the parties may agree on visitation in an Agreement. If they cannot agree, they can try mediation or arbitration. If they do not wish to try mediation or arbitration, they can go to court and let a judge decide.

What is the Court Procedure in Custody/Visitation Cases?

One of the parties begins the process by filing a Complaint (lawsuit) for custody or visitation. The parties generally must attend mandatory mediation before a trial will be scheduled. In some jurisdictions, the parties must also attend parent education classes. In extreme cases, the court may appoint a Guardian ad Litem to represent the children or a mental health professional to perform a psychological evaluation of the parties and/or the children. At a trial, the court will hear evidence and will decide what custody and visitation arrangement is in the best interests of the children.

What is Mediation?

Mediation is when a neutral third party helps facilitate an agreement between the parties. The mediator does not make decisions. The parties make the decisions, but the mediator helps them along. You can do private mediation before or after a Complaint has been filed. You can address custody, child support, alimony, and property issues in mediation. Mediation is generally less expensive and not as time-consuming as court. The parties control the outcome. The entire process can be settled in one day, and you can leave a private mediation with a binding settlement document. The process is very civil and dignified. It can set the tone for how the parties deal with each other from that point forward. If the parties are not able to resolve the issues incident to their separation at mediation, typically they work together and treat each other better in subsequent dealings with children or otherwise. You do not necessarily need a lawyer for mediation, but we recommend it. A non-lawyer mediator will not know the law. Without an attorney, you could lose or waive rights you did not know you had. Our Raleigh child custody attorneys can help protect your rights.

Is Custody Ever Permanent?

No. Custody and visitation arrangements are always subject to change when circumstances affecting the child’s best interests change substantially.

Can the Child Decide?

No. The court may consider the wishes of older children, but the court will not let the children decide custody or visitation issues.

Resources:

“This Is The Law” Pamphlet series, Child Custody/Visitation and Child Support, http://www.ncbar.org/public-pro-bono/publications/this-is-the-law-pamphlets, North Carolina Bar Association, copyright 2005, revised 2013.


 

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