The Del Ré Law Firm, PLLC

1111 Sabbath Home Rd SW Holden Beach NC 28462
Phone: (910) 842-5193
Toll Free: (888) 287-4224
Fax: (910) 842-8545
Email: ben(at)delrelaw.com

North Carolina Child Custody Questions

  1. What do the courts look at to determine custody?
  2. When can child custody be decided or filed?
  3. When can child custody be modified?
  4. What should I know about going to court in a child custody case?
  5. Can my child choose who they want to live with?
  6. What is joint custody?
  7. What is sole custody?
  8. What is a temporary custody order?
  9. What is an ex parte order?
  10. If custody has to be obtained by civil contempt proceedings, can I get my attorney fees paid for?
  11. Will my child have to speak in court?
  12. Do I really need a written agreement about custody if my spouse and I verbally agree on the terms and are cordial?
  13. What is visitation in North Carolina?
  14. Does North Carolina favor the mom in a custody dispute?
  15. When is no visitation or supervised visitation awarded?
  16. Can I change my child’s name without the other parent’s consent?
  17. What is a custody evaluation and do I need one?
  18. Could dating have an impact on my child custody case?
  19. Can I deny visitation if I am not receiving my child support payments?
  20. Do grandparents have any right to visitation in North Carolina?

 

  1. What do the courts look at to determine custody?

The courts look at what is in the best interest of the child. The judges have wide discretion in their rulings. They will look at both you, and your spouse’s, past history and behavior, to determine how they believe you will act in the future. The court’s sole focus is on determining what is in the best interest of the child. This includes physically, emotionally, mentally, spiritually, and morally. They consider:

  • Who has been the primary caregiver in the past
  • The mental and physical well being of each parent
  • The child’s age
  • The home environment each parent could provide
  • The time each parent has available to provide care for the child
  • The relationship the child has with each parent
  • The presence of siblings, and the relationship to each other, and the parents
  • Any history of abuse, neglect, or drug use by either parent
  • Religious factors
  • The willingness of each parent to include the other parent in their children’s lives
  • Each parent’s adult relationships, including non-marital sexual relations
  • The child’s wishes

The weight the judge gives each of these factors is completely at their own discretion.

 

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  1. When can child custody be decided or filed?

Child custody can be decided at any time after separation, or pending a claim that would allow a judge to remove one parent from the parties’ residence. It can be filed before the divorce, with the divorce, or after the divorce proceedings.

 

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  1. When can child custody be modified?

If you and your spouse agree, custody can be modified by a written agreement between the two of you. If going to court, custody can normally be modified whenever there is a substantial change in circumstances to warrant it. This includes things like a parent moving, problems with visitation, change in employment or marital status.

 

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  1. What should I know about going to court in a child custody case?

Family courts hear he said/she said testimony all day long. The more verifiable evidence you have for your case, the better. This could include doctor’s reports, school reports, detailed diary of interactions with your spouse, etc. The best witnesses are impartial 3rd parties who have witnessed you interacting with your child, preferably over long periods of time. For instance teachers, doctors, neighbors, etc. Friends and relatives are also good witnesses, though it’s understood they’re not as impartial.

 

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  1. Can my child choose who they want to live with?

In North Carolina, once a child has reached an age where they have the mental capacity to comprehend and offer a reasoned opinion on the subject, their preference is entitled to considerable weight by the court. This can be obtained through testifying in court, or by talking to the judge in the judge’s chambers. As the child gets older, more weight is given, though it is entirely within the judge’s discretion as to how much. The first concern is always what the judge feels is in the best interest of the child.

 

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  1. What is joint custody?

Joint custody typically means that the parents share in the decision making process for their child. However, the term really doesn’t mean much legally. The rights you have to your child will be spelled out in your custody agreement. Whether it says joint custody, shared custody, or even sole custody will matter much less than the actual terms of your agreement.

 

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  1. What is sole custody?

Sole custody usually means that the parent with physical custody has all the decision making authority for the child. However, the meaning of the term really comes down to whatever is written in your custody agreement. The rights you have to your child will be spelled out in your custody agreement, so don’t get too hung up on the terminology or words used to describe the agreement.

 

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  1. What is a temporary custody order?

A temporary custody order is an order of custody put in place before the final child agreement has been reached. These orders are used to provide stability for the child, and to prevent the removal of the child from jurisdiction.

 

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  1. What is an ex parte order?

Ex parte is an emergency temporary custody order. These are typically used to protect the child from harm or abuse, or to return things to the status quo. Ex parte orders are one sided, meaning only one side is able to tell their version of events. For that reason, a court must review the order within 10 days and give the opposing side an opportunity to present their evidence in court. Once the court has heard all the evidence, it can decide whether to keep the order in force, modify it or terminate it.

 

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  1. If custody has to be obtained by civil contempt proceedings, can I get my attorney fees paid for?

It’s possible. The courts allow for this request, though whether it’s granted is at the sole discretion of the judge and depends on the particular circumstances in your case. In order to be granted, the court must find that you were acting in good faith, and that you have insufficient means to pay the cost of the suit. Contact our office for more information and for a free consultation.

 

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  1. Will my child have to speak in court?

Your child may not be asked to testify. Even though the proceedings are about their well being, it may be viewed as too traumatic for your child to appear in court, or they may be too young to understand the proceedings.

 

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  1. Do I really need a written agreement about custody if my spouse and I verbally agree on the terms and are cordial?

Child custody is usually the most emotionally charged issue in family law. Though you and your spouse may agree now, that could change quickly. Without a written order in place, either parent could abruptly, and without notice, change the child’s living arrangements or even move the child out of state, without repercussions, provided they weren’t moving solely to avoid the court’s jurisdiction.

 

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  1. What is visitation in North Carolina?

Visitation refers to the time the non-custodial parent has with the child. In North Carolina, when cases go to court, the typical visitation granted is every other weekend, half of all major holidays and special occasions, like birthdays or Mother and Father’s day. Occasionally, there is also one weekly overnight visit or ‘dinner visit’ during the week.

 

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  1. Does North Carolina favor the mom in a custody dispute?

In North Carolina, there is no legal preference for one parent over the other. Judges tend to look at who has been the primary caregiver, along with the other factors, to determine what is in the best interest of the child.

 

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  1. When is no visitation or supervised visitation awarded?

It is very rare that an order of no visitation is given. If the judge is convinced that the child could come to some harm, or be in danger, then supervised visits are awarded. The visits could occur in a supervised facility with an unrelated third party, like a social worker, supervising. It could also occur in the non-custodial parent’s house, with a relative supervising.
 
There may also be graduated steps, like starting out in a facility and then moving to the parent’s house at a later date, provided the parent shows consistent and reliable care around the child.

 

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  1. Can I change my child’s name without the other parent’s consent?

Typically, no. There are only a few instances where you are allowed to do so:

  • the other parent is deceased
  • the minor child is 16 or older
  • the non-custodial parent has been declared by the courts to have abandoned the minor child

 

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  1. What is a custody evaluation and do I need one?

In highly disputed cases, or those where the custody could go to either parent, it may be useful to have a custody evaluation done. This consists of having a psychologist evaluate both parties and/or the child. They look at the child’s developmental and emotional needs, and the relationship the child has with each parent, to determine where they feel the child would be best situated.
 
The process may provide some valuable insight into your child, as well as into you and your spouse’s parenting skills. However, it’s a very expensive and complex process and should be given careful consideration before proceeding. For more information, contact our office for a free consultation.

 

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  1. Could dating have an impact on my child custody case?

It could. If the other parent finds out about it, it could be perceived as a threat, and a way to insert another parental figure into your child’s life. The finding could unravel any child custody negotiations.
 
The other parent could also threaten to use it against you in a custody case. Judges do look at this in their final evaluation but the courts have overwhelmingly rejected the argument that it’s harmful to the child. The only time it really becomes an issue is when it can be shown that the overwhelming focus on a person’s love life adversely affects a parent’s ability to properly care for their child.

 

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  1. Can I deny visitation if I am not receiving my child support payments?

No. The two issues are completely separate.

 

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  1. Do grandparents have any right to visitation in North Carolina?

They do, but the order must be put into place before the case is resolved. It can’t be done after a permanent child custody order is in place. How much visitation is allowed depends on the circumstances of your particular case. For more information, contact our office for a free consultation.

 

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