Child custody legislation is relatively consistent among the majority of states in the nation due to the adoption of the Uniform Child Custody Act. North Carolina is one of the many states that comply with it. Nevertheless, the state uniquely reinforces the belief that child custody matters should be resolved by a voluntary agreement between parents as opposed to in a courtroom. The state requires parents who wish to pursue legal recourse in regard to child custody to first undergo a mediation session. Mediation is an alternative dispute resolution method that has proven to be a more peaceful and cost effective way for parents to resolve child custody matters. Due to the high number of successful mediation settlements, only a small number of North Carolina child custody disputes are litigated in court.
However, there are parents who undergo a mediation session and feel as if a settlement is not feasible, and wish to take child custody matters to court. In cases involving an abusive spouse, issues with child protective services, or a parent who struggles with substance abuse and addiction, it may be best for the courts to handle these matters. Agreeing on an optimal custody arrangement for children after a divorce or separation can be difficult, especially when both parents may not see eye to eye. However, despite the existing hostility between parents, it is the duty of the court to find a solution that is based on the best interest of a child.
Figuring out the best possible child custody arrangement is one of the most crucial and emotionally charged aspects of family law. If you feel as if you will have to appear in court to resolve child custody issues, it is incredibly important that you understand how the state of North Carolina will handle your case and make a decision.
Determining Child Custody in North Carolina
According to North Carolina statutes, (N. C. G. S. § 50-13.2) courts determine child custody by solely evaluating “what will best promote the interest and welfare of the child.” In order to successfully do so, statutory law requires that the courts examine a number of relevant factors of the said child's life. Although the state does not specifically list all of the factors that will be considered, it does provide examples of these factors, such as the overall safety of a child and any occurrences of domestic violence. Some additional factors that are commonly used when resolving custody issues are (but not limited to):
- the child's current living arrangement;
- Each parent's physical, emotional and psychological ability to adequately care for the child;
- The child's relationship with each parent;
- The ability of each parent to provide a stable home environment for the child;
- The wishes of a child;
- Religious and/or cultural considerations;
- Adjustment to school and community;
- A parent's use of excessive discipline or emotional abuse; and/or
- Any evidence of either parent's relation to drug, alcohol or sex abuse.
One of the most common complaints among parents is the court's tendency to take the side of one specific parent based on stereotypes or the gender of a parent. However, North Carolina law explicitly states that arbitrary elements will not influence the court's decision. Most states, along with North Carolina, have abolished the maternal preference associated with the “tender years” doctrine, which enforces the presumption that a mother is more capable of taking care of a child in his or her early years than a father. Now, North Carolina law prohibits the courts from presuming that either a mother or father could be preferred to promote a child's best interest. This law even extends to adoptive parents; state law prohibits the courts from assuming that a biological parent promotes a child's best interest instead of an adoptive parent. All decisions should be made in light of a thorough assessment of the factors listed above.
Types of Child Custody Arrangements
When the court finally comes to a decision, it will entail - with its broad discretion - the best custody arrangement for a child. Here are some options that North Carolina courts have granted to parents:
Physical Custody: This type of custody arrangement refers to where a child will live on a regular basis. When a judge decides that a parent has primary physical custody, it means that parent will regularly provide care for the child. Usually in cases when one parent is awarded this type of custody, the other parent, known as the non-custodial parent, is given visitation rights that entitle them to spend time with their child, too.
A court may also award parents with joint physical custody, also known as shared custody. When this occurs, both parents have the responsibility of providing care for the child, and they both are entitled to spending substantial amounts of time with him or her.
Legal Custody: When a court dictates that a parent has legal custody of a child, that means the parent bears the obligation of making vital decisions about a child's upbringing. The school a child will be attending, participation in religious customs (or the lack thereof), and medical care choices are matters that would be decided by parents who are awarded legal custody. Legal custody can be joint or sole, but courts generally award joint legal custody.
The Burden of Proof
Child custody cases are resolved based on the burden of proof provided by each parent. Therefore, in these cases, parents should aim to prove to the court that the behaviors and abilities exhibited by him or her are more likely to enhance a child's overall development than the other parent. Generally, the parent who has evidence of prior involvement in a child's life and care-taking history will be the parent preferred by a judge.
Experienced North Carolina Family Law Attorneys
One of the most emotional and stressful aspects of a divorce or separation is deciding who gets custody of a child and how this will be arranged. With the assistance of a legal professional, you will be able to receive useful advice to help you understand what to expect and help the process go more smoothly. After all, the goal of these cases is to come to an agreement on an arrangement that best reflects the best interest of a child. Contact Caulder & Valentine Law Firm today for a consultation.