North Carolina courts recognize two forms of child custody: “physical custody” and “legal custody.” Physical custody refers to the right of a parent (or guardian) to have actual physical custody of the child. Legal custody refers generally to the right of a parent (or guardian) to make important decisions on behalf of a child, such as those pertaining to the child’s health, education, discipline, and religious or spiritual training.
Child custody can be agreed to between the parties, or ordered by a court. When a child’s parents do not live together, it is recommended that they have a valid written agreement or court order setting forth the terms of their child custody arrangement.
Possible options for child custody arrangements between parents include the following:
- the parents share both legal and physical custody of the child;
- one parent has sole legal custody and both parents share physical custody on an equal or nearly equal basis;
- the parents share joint legal custody, but one parent has primary physical custody and the other parent has secondary physical custody;
- one parent has both sole legal and physical custody of the child while the other parent has visitation privileges (which may include supervised visitation); or
- one parent has both sole legal and physical custody, and the other parent does not have any visitation privileges with the child. It should be noted, however, that only in rare or highly unusual circumstances, such as where there is child abuse or child endangerment, would a judge deny a parent visitation with his or her child.
When parents cannot agree on child custody, either party can initiate legal action requesting that child custody be established (or modified) by a court with jurisdiction. Policies in North Carolina encourage parties to settle child custody disputes outside of court so the parties usually must participate in mediation before the court will schedule a hearing on the issue of child custody.
In Buncombe County, where there is a dedicated Family Court, the local form 1 entitled “Notice of Judicial Assignment” must be submitted to a Family Court case manager at the time that that a complaint or motion involving contested child custody is filed with the court, together with local form 12 that includes an “Order to Attend Parent Education/Mediation Orientation & Mediation” and “Referral for Custody Mediation.” The Family Court case manager will complete the required local forms by indicating the judge assigned to the case, setting dates for each party to attend a mandatory Parent Education class and Mediation Orientation, and scheduling a status conference or hearing on any preliminary matters. A copy of the completed local forms along with all other documents filed with the court must be delivered to Family Court and properly served on the opposing party. Buncombe County’s local rules and forms can be found on the web at http://www.nccourts.org. Select “Buncombe County” from the drop-down menu and then click on the link for “Local Rules.”
Mediation of a contested child custody matter is a mandatory program under North Carolina state law. The requirement to attend mediation may be waived by a judge in certain circumstances, such as if a party lives a long distance from where the custody action has been filed.
When the parties attend custody mediation through the court’s mediation program, a mediator, who is a neutral third party with experience in conflict resolution, will work with the parties to attempt to help them reach an agreement regarding child custody and parenting issues. If the parties are able to resolve their custody dispute at mediation, the parties will enter into a written agreement known as a “Parenting Agreement” that details the terms of their settlement. The Parenting Agreement may then be submitted to the judge for approval, incorporated into a court order, and enforced in the same manner as a court order.
The custody mediator available through the court system is limited to working with the parties to resolve disagreements regarding child custody and/or visitation matters. There is no charge to either party for participating in the mandatory custody mediation program. Typically the parties do not have their lawyers present when they participate in the custody mediation program. However, it is strongly recommended that both parties consult with an attorney prior to the custody mediation to ensure that they understand their rights, options, and responsibilities.
The parties can agree to use the services of a private mediator if they are willing to pay for the mediator’s services. The advantage of using a private mediator is that the mediator is not limited to working with the parties to resolve child custody. The private mediator can work with the parties to resolve other issues that may be in dispute, such as child support, post-separation support, alimony, and equitable distribution of marital property and debts. When the parties agree to use a private mediator to mediate disputes that include these important family financial matters, it is customary for each party to have their attorney present to offer guidance, explore options, and advise of the pros and cons of settlement possibilities.
If the parties are unable to resolve their custody dispute through mediation, then a hearing or trial can be scheduled so that a judge can make a decision. When adjudicating child custody matters, judges are guided by the legal standard of what is in “the best interests of the child.” This standard, however, can be very subjective as judges have broad discretion in determining what constitutes the best interests of the child. This also underscores the importance of being represented by a reputable family law attorney who can present crucial evidence to the court on your behalf.
The family law attorneys at Siemens Family Law Group understand that child custody disputes can be a difficult and emotional process for families. If you are pursuing or defending a claim for child custody or visitation, we can explain your options and make recommendations based on your unique circumstances. Our dedicated and experienced attorneys are skilled negotiators and seasoned litigators. We focus our practice exclusively on family law matters, including child custody, child support, spousal support, and division of marital property and debts so you can be confident we are knowledgeable and prepared to address other claims at issue in your case. Whether you need assistance in negotiating and preparing a written separation or custody agreement, or are involved in a contentious divorce or custody battle, you can count on the attorneys at Siemens Family Law Group to provide you with exceptional legal services.
This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.