Child Custody Overview

The Best Interest of the Child

Our clients all have one thing in common: they want the best for their children. The State of North Carolina does too. That’s why the standard for establishing custody is the best interest of the child. It all goes back to what’s best for the kids.

But life is messy and sometimes adults cannot cooperate. Sometimes one parent loses his or her way and forgets what is best for their children. And sometimes, a parent is able to turn his or her life around and resume an active role in a child’s life. We are here to help any parent who wants to help their child. The legal system is complex – let us help you navigate it. Read on for an overview of child custody in N.C.

How Can We Decide Custody After a Breakup?

Whether married or not, parents who are together don’t need a custody arrangement. But when a relationship ends, the parties often realize they need to put something in place. If the breakup is amicable, the parties may come to an informal agreement that works for everyone without court involvement. For a married couple who has separated amicably, a separation agreement might be the perfect solution. It takes the arrangement the parties have agreed to and formalizes it in a contract. It’s also more cost effective than hiring a lawyer to go to court for you! Click here to learn more about separation agreements. If the relationship deteriorates and one party breaches the agreement later on, the other parent can bring them to court for a breach of contract claim.

Examples

But what if things aren’t amicable? What if a formal custody arrangement is desperately needed? Unfortunately this happens quite a bit. Here are some examples of when taking your child’s parent to court to work out custody may be appropriate:

Emergency Custody:

  • I discovered that my children’s father has been beating them and neglecting them! We don’t have a formal custody order in place. I have them most of the time, but he gets a lot of visitation. They are not safe with him – what can I do?
    • It’s time to file a motion for emergency custody. The children are in danger. It’s clearly in the children’s best interest to stay with the other parent. A motion for emergency custody, founded on a strong basis like this, will be heard much faster than a non-emergency complaint. The best solution here would be for the abusive parent to have limited, supervised visitation with the children going forward. The court can also order the parent to attend parenting classes.

Temporary Parenting Arrangement:

  • Ever since we separated, my children’s mother has withheld the children. She won’t let me see them if I am late paying the child support we agreed on. She also keeps snatching the children from school and going away with them for long weekends. I hate not knowing when I will be able to see my children again!
    • A temporary parenting arrangement (TPA) may be a great option here. A TPA falls between a normal complaint for custody, which is not very time sensitive, and a motion for emergency custody. Even though the mother’s actions here are troubling, this is not an emergency situation. A TPA is perfect for cases of “snatching” and withholding the children. The TPA will be heard by the judge quickly, usually within a few weeks. It’s also important to note that a parent cannot withhold custody because the other parent hasn’t paid child support. Child support and child custody are completely unrelated! 

A Permanent Custody Order:

  • My child’s mother and I separated when our child was born. I was involved in drugs, I drank too much, and I kept getting in trouble with the law. I wasn’t a fit parent and I only saw my child once every couple of weeks. But now, I’ve been clean for years, I have a steady job, and a place to live with room for my child. My child’s mother doesn’t want me to see her even though she knows I’ve stuck to those changes. What can I do?
    • It’s never too late to change and become a fit parent. In this situation, a complaint for child custody would be appropriate. The ideal solution might be to get a visitation schedule where this parent has court-ordered visitation one night every week, and every other weekend. It would allow the parent to become an active part of the child’s life, but still let the mother keep primary custody. A TPA or emergency custody motion are not applicable here. Even though the father wants to see his child more, the mother is not doing anything to harm the child. It will take a lot longer for the custody order to be heard, but it’s appropriate in this situation. 

Modifying an Existing Order:

  • We’ve had a custody order in place for six years. Now my child’s father is talking about moving across the country. He wants to take our son with him. Right now he has primary custody and I have visitation. But seeing my son on the weekends will be impossible when he moves to Albuquerque! And, he’ll be pulling my child out of school where he loves his friends and teachers. He’s also very close with my parents, who live here. What should I do?
    • In this situation there is already an order. The order has been in the best interest of the child. But now, everything is changing. It’s time to modify the order. The standard for modifying an order is a substantial change in circumstances. Once that burden has been met, modification goes back to the best interest of the child. This situation involves both of those factors. Moving the child will disrupt her schooling and her routine – a substantial change. Because the child is thriving here, it would not be in her best interest to move. The judge may decide that it would be in the best interest of the child to give custody to the parent who is staying in North Carolina, and allow him to stay with his father in the summer months when school is out.
    • A great case on point for this scenario is Ramirez-Barker vs. Barker.

Other Things to Keep in Mind

We get a lot of inquiries about situations similar to those listed above. We hope this overview has helped shed some light on custody in North Carolina. Here is a brief summary and some more ideas to keep in mind:

  • The standard for the initial custody determination is “the best interest of the child.”
  • The standard for modifying a custody order is “a substantial change in circumstances.” Once a party proves that there was a substantial change, then it goes back to the best interest of the child.
  • The “Petersen Presumption” states that a biological parent is automatically assumed to be the best caregiver for their child. This also applies to parents who have adopted a child. It doesn’t mean that the natural parents will always be the best caregiver; just that they’re automatically assumed to be, until proven otherwise. This presumption comes from Petersen vs. Rogers. If you are a non-parent seeking custody of a child, check out our other blog post on that subject.
  • TPAs and emergency custody may be necessary in cases where a parent is abusing or neglecting a child, or where a parent is for some other reason unfit, or when a parent is unreasonably withholding a child from the other parent.

Thanks for reading. We hope this has helped shed some light on child custody in North Carolina. Our firm handles family law matters in Mecklenburg and the surrounding counties. Call us today for legal assistance at (704) 559-9745.

By Tessa Hetherington

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