Child Custody Establishment & Modification

Common Issues and Questions Related to Child Custody

What is “custody”?

Simply put, “custody” generally describes the right of a parent, guardian or other appropriate person to have the minor child in their physical care and control. This is more specificallyknownas“physicalcustody”. Therearemanyotherpartstocustodyas described below, but the majority of custody disputes focus on physical custody. Specifically, on issues of physical custody, the conflict usually involves how much time each parent should have with the children and on what specific schedule each parent will have time with the child or children.

North Carolina Presumptions and Public Policy on Child Custody

In the State of North Carolina, there is no formal presumption that parents will share time with the children equally. However, we find in Asheville and Hendersonville and surrounding areas, the courts generally seem to be disposed to find that children should be shared equally between parents unless there are reasons to do otherwise. This is likely based on the public policy of the State of North Carolina as explained in North Carolina Statute § 50-13.01, which states:

It is the policy of the State of North Carolina to:

(1) Encourage focused, good faith, and child-centered parenting agreements to reduce needless litigation over child custody matters and to promote the best interest of the child.

(2) Encourage parents to take responsibility for their child by setting the expectation that parenthood will be a significant and ongoing responsibility.

(3) Encourage programs and court practices that reflect the active and ongoing participation of both parents in the child’s life and contact with both parents when such is in the child’s best interest, regardless of the parents’ present marital status, subject to laws regarding abuse, neglect, and dependency.

(4) Encourage both parents to share equitably in the rights and responsibilities of raising their child, even after dissolution of marriage or unwed relationship.

(5) Encourage each parent to establish and maintain a healthy relationship with the other parent when such is determined to be in the best interest of the child, taking into account mental illness, substance abuse, domestic violence, or any other factor the court deems appropriate.

As a practical matter, a parent in a child custody case who wishes to have a majority of time with the child or wants “primary” or “sole” custody, should be prepared to carry the burden to show why that schedule is in the child’s best interest.

In years past, the courts often applied the “tender years doctrine”, which was the belief that a young child needed the mother more than the father and that the mother was the natural person to take care of young children. This doctrine is no longer in place in North Carolina, and mothers receive no specific or statutory preference over fathers in custody litigation. North Carolina Statute § 50-13.2 specifically states, “[b]etween the parents, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child.”

What is the best interest analysis?

North Carolina law requires that the court determine what custody schedule is in the best interest of the child. North Carolina Statute § 50-13.2 directs the court to award custody to the parent who “…will best promote the interest and welfare of the child.” While “the best interest” seems clear, the laws of the State of North Carolina are lacking in terms of identifying what specific facts a court should examine to determine best interest. The statute only requires the court to consider “all relevant factors”, but only enumerates the safety of the child, and the safety of either party from domestic violence by the other party as specific factors. There is absolutely no guidance from the statute as to what is a “relevant factor” when determining best interest. This is one of the reasons it is very important to retain an attorney experienced in family law to help you with a contested child custody case. Putting together a compelling, complete and accurate presentation on custody is vital to determining the best interest of your child. Presenting such a case in court can be extremely complex and all of the evidence you use must be admissible under the rules of evidence. At Blue Ridge Family Law Group, our attorneys have years of experience presenting custody cases in Asheville, Hendersonville and most of Western North Carolina. Contact us to set up a time to discuss your questions about child custody.

Common Physical Custody Schedules

The most common physical custody schedule is a simple 50/50 schedule that rotates every 7 days (once per week). This is known as a 7/7 schedule. It is most frequently used for children that are school-aged or older. The obvious benefits of this schedule is that it is simple, predictable (for the children and parents), reduces the number of exchanges and allows the children time to adjust to each household after a transition.

The next most common custody schedule is known as a 2-2-3 schedule. This schedule has one parent having two days (for example, Monday and Tuesday) and the other parent having two days (Wednesday and Thursday) and the parties rotate the remaining three days (Friday, Saturday & Sunday). This schedule offers some of the same stability and predictability of the 7/7 schedule, but the longest period of time a parent is without the children is five days and not seven days. For parents seeking even shorter periods with (or without) the children, a rotating 2-2-3 schedule can be utilized. In a rotating schedule, all blocksiftheschedulerotate,notjusttheweekend. Underthisschedule,noparenthas more than three days with the children (as the Monday/Tuesday and Wednesday/Thursday also rotate). This is a high rotation schedule that requires frequent exchanges, is more complicated and can be confusing. It is generally utilized when the minor children are very young as the parents don’t want to be without the children for any extended period of time.

Finally, a common schedule for parents who live in separate communities or have a non- 50/50 schedule, is an every-other weekend schedule. In this schedule, one parent has the majority of time with the children, and the other parent has time with the children every other weekend and holidays.

What is Legal Custody?

Many parents are unfamiliar with the difference between “physical” custody and “legal” custody. It is important to understand the difference between the two when resolving custody disputes. Although not defined in the North Carolina General Statutes, the case law employs the term “legal custody” to refer generally to the right and responsibility to make decisions with important and long-term implications for a child’s best interest and welfare. See Diehl v. Diehl, 177 N.C. App. 642, 646 (2006).

In the vast majority of cases we see in Asheville, Hendersonville and most of Western North Carolina, the parents of a child or children are awarded “joint” or “shared” legal custody, meaning that major decisions for the child have to be made by both parents, even if the parents do not have a 50/50 physical custody schedule. However, there are some cases where the parents are not able to make joint decisions for the children. In such cases, one parent can be awarded “sole” legal custody, or “ultimate decision-making authority”, meaningthatoneparentcanmakethedecisionforthechildren. Formoreinformation about sole custody or ultimate decision-making authority, you should speak to one of our family law attorneys, and please see below about how those terms are generally defined.

Undefined Terms in Custody

There are many terms that are commonly used in family law that actually have no specific legaldefinition. Thesetermsinclude“solecustody”,“sharedcustody”and“visitation”. We oftenhaveclientsclaimthattheywant“solecustody”. Thistermisnotdefinedbystatute andcanmeandifferentthingstodifferentpeople. Inpractice,“solecustody”canoften mean that a person has the majority of physical time with the minor children, which can also be called “primary custody”. Sole custody does not typically mean that the other parent has no time with the minor children.

When one parent has the majority of time with the minor children, the other parent can be said to have “visitation”. The line between what constitutes having shared physical custody where a parent has less than 50% of the time with the child and that same parent having “visitation” is not clear. A schedule where one parent has every other weekend with the minor child could be said to have “shared custody” with the other parent (and while shared, the parent has less than 50% of the time), or the other parent could also be said to have “sole” custody with the other parent having “visitation”.

While “visitation” is less than “shared custody”, there is no clear dividing line between the two. For this reason, and the ambiguities in the above terms, we often encourage parents to explain the specific physical custody schedule they wish to have and not worry about what to call that schedule.

Custody between unmarried Parents

Child custody laws apply equally to married and unmarried parties. The only significant difference is that if the parents are not married, one parent (usually the father or the person who did not give birth to the child) must prove that they are the legal or biological parent of the child prior to obtaining a custody order. If there is any doubt about the paternity of a parent, the attorneys at Blue Ridge Family Law typically make a claim of paternity or even file a paternity action at the same time as the custody action. Typically, paternity can be established with a simple DNA test. If the other parent won’t agree to a DNA test, a court order can be obtained to require that the minor child’s DNA be tested.

When does a child get to decide custody issues?

This is a frequent question that has a simple answer. A child can determine his or her own custody once he or she reaches the age of 18. At that point, it’s not really custody as the court loses jurisdiction over the child and the parents have no legal responsibility for the child. But prior to being an adult, the child can only express a preference for custody and cannot make the decision for him or herself. While children ages 16 and 17 don’t have a right to choose their custody, the court will frequently put at least some weight on what a child that age prefers, if there is a rational basis for that preference. An older child who prefers one parent because that parent exercises no discipline on the child is not a preference the court will honor.

Can my child testify in court?

If your child is a competent witness, he or she may testify in court. There is no specific age at which a child is “competent or “not competent” as a witness. The important distinction is whether the child can testify clearly and if they can understand truth from a lie. Unfortunately, our attorneys have seen children as young as 10 years old call to testify. Generally, this practice should be strongly discouraged as calling a minor child in a custody case is typically detrimental to the child. An experienced family law attorney like the attorneys at Blue Ridge Family Law Group have experience in building compelling custody cases without directly involving the minor child. The child should be shielded from litigation and should never be called to court absent extenuating circumstances. In some rare cases or cases where the child is 16 years old or older, it is more likely that the child will need to be called to testify in a case. However, the attorney should always be striving to avoid calling a minor child to testify.

What is a custody evaluation?

A custody evaluation is a process by which a mental health professional investigates the facts and circumstances of a case, talks to the mother, father and potentially the child, as well as witnesses identified by the parties, and makes a formal recommendation to the court about custody. It is one of the very few situations where the court receives an expert opinion on custody. Other professionals, such as social workers, teachers, social workers and even medical doctors are not allowed to make recommendations about child custody in an expert capacity, absent a full custody evaluation.

A custody evaluation is an expensive and time-consuming process and is not appropriate for every case. If you would like to learn more about custody evaluations, you should contact one of the experienced family law attorneys at Blue Ridge Family Law.

I have a custody order or agreement. How can it be changed or modified?

An agreement on child custody that is written and signed, but is not made an order, is not binding on the court or the parties. If there is an agreement that is not an order and one or both parties want to change some aspect of the custody of the child, either party can file a motion to establish custody. The court will not be bound by the prior agreement of the parties, but will examine that agreement and accept it as evidence of what the parties believe was in the children’s best interest at the time the agreement was reached.
Once child custody agreements are established as orders (or a custody order is entered after a hearing), there may be substantial and material changes to one or both former spouse’s lives or the life of the child that affect the welfare of the minor child. Such changes can warrant a modification to the child custody order.

Typically, one parent must request modification with the court, and the judge must agree that there has been a substantial and material change of circumstance affecting the welfare of the minor child sufficient to warrant a change in custody. Once that legal threshold has been met, the court may enter any custody order it finds to be in the best interest of the minor child. This could mean only a minor change or a major change in the physical or legal custody of the child.

How can an attorney help me in a custody case?

Our family lawyers, who serve Asheville and nearly all of Western North Carolina, can help clients establish an initial child custody order as well as aid in the modification and enforcement of the order in the years following the entry of the order. We work hard to meet our clients’ needs while reaching an agreement that is best for the children involved. When litigating an initial custody order or modifying an existing order, our attorney can help you make sure the court hears all the facts and makes a decision that is in the best interest of your children. Contact our family lawyers today to schedule a consultation with our experienced child custody attorneys.