Determinations in North Carolina
North Carolina Judges look to the child’s best interests when determining child custody. The Court will listen to the evidence and determine who the child should be with, what the custody/visitation schedule will be and who gets to make major decisions for the child.
Will my child testify?
The court may but does not have to give weight to a child’s preference for custody. The judge may decide in his/her discretion whether a child’s testimony in a custody hearing is given in court or in the judge’s chambers. The child’s testimony may be in the judge’s chambers. The older the child the more likely the judge will take his/her preference into consideration. At Hopkins Law Firm, PC, we strive to keep children out of custody disputes and only involve children when absolutely necessary. Some instances when a child’s testimony is necessary include when the child is a victim of sexual abuse or domestic violence and his/her testimony is necessary to keep him/her safe.
What is a Temporary Child Custody Order?
A party may ask the court for temporary custody to get an order in place as the parties prepare for a more permanent hearing. These temporary hearings are brief and must be done in less than 2 hours. Since the court’s calendar is very full, it is sometimes easier to get a brief temporary hearing than a longer permanent one. Since each case is unique, ask us what is best for you.
If you are in the beginning of your dissolution or separation and the parties are getting along, try to enter into an agreed upon custody/visitation schedule for the children. This will make the transition easier on you and the children.
What is Emergency Custody & How Do I Get It?
A party can petition the court with an ex parte motion to obtain a temporary emergency custody order if it is an emergency situation where the child is at risk of injury or sex abuse or if the other parent is planning to flee the state with the child. An ex parte motion is heard by the judge with little notice to or argument from the adverse party. However, ex parte motions for emergency custody should only be used in real emergencies and should not be used to gain leverage in a custody case. Consult with Hopkins Law Firm, PC to determine if your circumstance warrants emergency custody.
Who Determines if a Child Custody Case Goes to Trial?
The parties can ask for the court to hear a claim for custody. Prior to trial the law of North Carolina requires most parties to participate in mandatory court ordered mediation to try and resolve who should have custody of the children. The goal of mediation is to resolve custody cases amicably and without a trial.
If after mediation the parties cannot agree to who should have custody the case can be calendared for trial and the judge will make a determination.
What is a Custody Evaluation & Do I Need One?
The parties can request the Court for a custody evaluation where a third party assesses each parent and prepares a report for the court to assist the judge in making a custody determination. These evaluations are very expensive and can cost thousands of dollars. Custody evaluations are comprehensive and it is critical that the right evaluator is assigned to your case. Ask us today whether or not your case qualifies for a custody evaluation and who we would recommend to perform the evaluation. Since the judge will consider the evaluation and all other relevant factors in making his or her decision as to what is in the best interests and welfare of the child with regard to awarding custody, it is imperative that the right evaluator be chosen for your case.
Domestic Violence and Its Impact on Custody
The court wants to ensure that the children are safe and all custody and visitation schedules are in the children’s best interest. If domestic violence has occurred, the court may require the abuser to attend parenting classes, abuser treatment programs and have supervised visitation. In cases of sex abuse where the perpetrator is parent, the court may order no visitation with the child.
If there is a history of domestic violence, drug use or alcohol abuse the judge may order supervised visitation as being in the child’s best interest and welfare.
What is Joint Custody? Legal versus Physical Custody.
Joint custody may be considered upon the request of a party. There is no statutory definition of joint custody in North Carolina. A joint custody arrangement can be defined by the parties or the court to best meet the children’s needs. There are two types of custody: legal and physical. Legal custody is defined as who makes decisions regarding major issues like religious upbringing, schooling and medical decisions. The parties can have joint legal custody or one party can have sole legal custody. Physical custody is typically joint or primary. Joint physical custody is usually 50/50 with one party having the child 50% of the time and the other parent having the child 50% of the time. Primary physical custody is when one parent has the child for the majority of the time and the other parent has a visitation schedule like every other weekend. Talk with us to determine what type of legal and physical custody is best for you and your children.
Unlike sole legal custody when one parent is the sole decision maker, joint legal custody requires the parents to communicate with one another and both have decision making power. This means the parents will have to reach mutual decisions about such issues as schools, religion, medical care and discipline.
If one parent who is part of a joint legal custody agreement refuses to participate in the joint decision making process and makes decisions about the children’s upbringing without consulting the other parent they could be found in contempt of court if the custody agreement is a court order.
May a Custody Agreement be Modified?
A permanent custody agreement may be modified based on a substantial change in circumstances. The party requesting the change must show there has been a substantial and material change affecting the best interests and welfare of the children since entry of the last order. A temporary order may be modified at any time based upon what the court determines to be in the minor child’s best interests.
How to Prepare for a Child Custody Trial
Stay involved in your children’s lives. Get to know their friends, their friend’s parents, teachers, counselors and coaches. When you go to trial you will be asked to provide witnesses who have first-hand knowledge of your relationship with your children. Talk with your attorney and build your case. Proof is in the pudding so be prepared to provide texts, pictures, emails and phone records.
If I am Not the Biological Parent What am I Entitled to?
Third parties, like grandparents, step parents and people acting in loco parentis may be entitled to custody of a child. If you are a grandparent, step-parent or other third party, it is critical that you contact an attorney to determine whether or not you can ask the Court for custody of a child.
Child Support and Custody
The parent with custody does not automatically receive child support. Child support in North Carolina is based on the North Carolina Child Support Guidelines to create the child support owed. The guidelines for child support use the party’s gross incomes and their contributions toward health insurance, daycare costs and other expenses for the children paid for by either parent as the basis for determining if one or the other parent has a child support obligation. Depending on the circumstances, a party can also seek a deviation from the North Carolina Child Support Guidelines.
What is the Parental Kidnapping Prevention Act?
The Parental Kidnapping Prevention Act was adopted by Congress in 1980 to establish standards regarding jurisdiction over custody matters among the states. If your ex-spouse has taken a child for whom you have primary custody out of state and refuses to return the child, you may seek relief under the Parental Kidnapping Prevention Act (PKPA). Contact the local law enforcement authorities and request they assist in the return of the child. Local law enforcement is bound by law to enforce the PKPA.
Can I recover my Attorney’s Fees?
Yes. The law allows a party seeking child custody to request an award of attorney’s fees. It is entirely within the Court’s discretion whether or not to grant the request.