You and your spouse can settle child custody through written agreement, or through a court order. As long as there is no controlling written document, either you or your spouse can modify the existing custody arrangement at any time by simply changing the residence of the child. Many couples do not realize that without a written agreement or court order, the fate of a child’s living arrangements are subject to unpredictable changes.
Those changes could include a parent moving from the current county of residence or leaving North Carolina with the children, unless the purpose of leaving was to escape the jurisdiction of the North Carolina courts. In North Carolina, without a written agreement or court order, each parent has equal rights to the physical possession of the child. Thus, moving with a child, without a document that prohibits such, is not considered abduction, unless the motivation for moving the child was to escape the reach of the North Carolina court system.
Child custody never becomes a real issue in 90 percent of all divorces. Typically, one parent (usually the mother) has primarily cared for the child during his or her life, and the parents agree this caregiver should continue to do so. The written agreement regarding custody will usually detail whether the parent receiving custody will have “joint” or “sole” custody.
Regularly, parents will be wrapped up in the terminology involving custody, even though there has been a settlement on the child’s primary residence. While one parent argues that she wants “sole custody,” the other argues that he wants “joint custody.” This language fight typically is less important, legally, than the parents think. Generally, these terms refer to a parent’s right to make decisions regarding the child. For a sole custody situation, the parent with physical possession of the child will take on most or all of the decision-making regarding the child. On the other hand, a joint custody situation typically allows for both parents to have input as to the decisions regarding a child. In actuality, the terms “joint” and “sole” will mean whatever the custody documents say they mean.
When drafting your agreement, you should keep this in mind. In North Carolina, the terms “sole custody” and “joint custody” have no special meaning unless you give them such a meaning in an agreement, or a judge gives the terms meaning in a court order. It all depends on the document, and the meaning it attributes to certain terms regarding decision-making.
If a judge has to decide a custody issue, he will base the decision on the best interests of the child. There are various factors the judge will take into account when determining the best interests of a child, most of which are clear-cut. Such factors include a parent’s physical or emotional wellbeing, the abilities of each parent to take care of the child, each parent’s role thus far in taking care of the child, the age of the child, the child’s relationship to each parent, the environment that the parent can create for the child, the presence of siblings in the family and the siblings’ relationship to each parent and to each other, prior bad acts by either parents (i.e. abuse or neglect), parental drug or alcohol problems, religious factors, the willingness of each parent to keep the other involved in the child’s life and allow the other parent’s access to the child, and each parent’s adult relationships, which includes non-marital sexual relations.
The court might also consider a child’s preferences regarding where he or she wants to live. In North Carolina, a judge is not required to defer to a child’s parental preference, but may do so. Practically, as the child gets older and matures, the judge may give more weight to the child’s preferences. However, preference will not be the determining factor for the judge. The determining factor for the judge remains the best interests of the child.
In most arrangements regarding a child’s residence, one parent has more custody time with a child, while the other spends less time with the child, which is known as visitation. Visitation is time that a child spends with a parent who the child does not primarily live with. In North Carolina custody cases, the secondary parent (the parent without primary custody) is usually awarded alternate weekends, sometimes an overnight visit during the week or another evening for dinner, half of all major holidays, and special days like birthdays, or Mother’s or Father’s Day.
In North Carolina, it is rare for a judge to order no visitation for a secondary parent. In cases where one parent can prove that the other may pose some danger to the child, the judge might allow supervised visitation by a relative or unrelated third party (i.e. social worker) in a protected setting. The supervision may decrease over time, depending on the improvement of the supervised parent’s behavior and attitude. There has been an increase in the number and length of visitation periods of a secondary parent within the last few decades, even though in North Carolina, different judges have different philosophies regarding this issue. Some judges are of the persuasion that very young children should remain in the same setting most of the time. Such judges would award less custody to the secondary parent until the child is older. However, most judges do not seem to take a child’s age into account when determining the frequency of visitation.
If find yourself litigating custody, your most important assets will be those people who personally observed your interactions with your child. These people include teachers, daycare workers, neighbors, friends, doctors, relatives, and the like. Such testimony will be the strongest when your witness has recently observed your interactions with your child, where your witness has observed such interactions over an extended period of time, and where you and your witness have discussed your child.
To strengthen your custody case, you should be a visibly active parent. This can be achieved by fostering relationships with all of the people who have meaningful contact with your child. You may decide to call these same people as witnesses at your custody trial. Additionally, obtaining video recordings or photos of the rooms where your child would live, or pictures of its outside spaces, might help your case. Such pictures and videos provide the judge with an image of how the needs of your child would be served by living with you. Also, pictures and videos create a personal experience, and may lead a judge to take greater interest in your side of the case.
Some couples are recommended to consider an evaluation of the child’s status and developmental needs by mental health professionals. The results may reveal a great deal about yourself, your spouse and your child. With this new information, you, your spouse and your child might consider following the recommendations of this impartial evaluator, rather than continuing with the case. Generally, any competent mental health professional – for example, psychiatrists, psychologists or social workers — can serve as the custody evaluator. As it relates to the evaluator, what matters most is his or her understanding of children and family dynamics, and not necessarily his or her training and background. A properly conducted evaluation can result in a settlement, and prevent the issue from going to trial.
The usual evaluation scenario involves the parents being interviewed together and then individually, one or more times. The evaluator will observe the child and his interactions with each parent, and may interview other significant people in the child’s life. It is not uncommon for standard psychological tests to be administered by the professional. Home visits, or visits to the place where a parent proposes the child will live, may be helpful to the evaluator. For objectivity and impartiality reasons, the evaluator should not be someone who has treated any member of your family. It is also recommended that each parent pay one half of the custody evaluation costs, to avoid the appearance of partiality by the parent who pays the entire fee.
Occasionally, one or both parents will hire their own mental health professional to advocate on their behalf for custody. However, judges tend to give less weight to such experts retained for the purpose of being partial to one side. Truthfully, some judges will discount testimony that they perceive to be biased, and prefer to hear what the other witnesses have to say about their observations and interactions with the parents and the children. A determination of whether you should use an expert should be made under the guidance of your attorney, since such a decision could lead to a large bill that does not influence the outcome of the case in your favor.