family law north Carolina statutes
NC child custody is often—and usually best—settled by a voluntary agreement between the parents. Only a small percentage of NC child custody disputes are decided in a courtroom. When child custody cases actually reach the court, a judge will consider a variety of factors, depending upon the evidence that the parties present. If a courtroom appears to be in your future, be sure to read Navigating Basic Court Procedure in North Carolina.
The NC child custody statutes provide limited guidance as to how the system actually works, but may provide some useful information. A separate section of the statutes, referred to as the Uniform Child Custody Jurisdiction and Enforcement Act, addresses the jurisdictional issues which arise in custody disputes. A federal law, known as the Interstate Parental Kidnapping Prevention Act, also addresses NC child custody jurisdictional issues. In recent years, grandparents’ rights have become an issue in NC child custody disputes.
Parents often wonder when, if and how their children get to decide which parent they will live with. When a parent fails to comply with the order of the court the contempt statutes can provide a solution to the problem. Our firm sponsors monthly seminars at which our associate attorneys can address some of the many possible issues typically involved in child custody disputes.
Child Custody in North Carolina
Of the many issues in domestic law, child custody is perhaps the most emotionally charged. For this reason, it can also become the most expensive sort of litigation that might result from your separation. In most cases, however, couples are able to compromise on custody without forcing this issue into court. In North Carolina, you and your spouse may settle issues of custody and visitation by private agreement; custody does not have to be submitted to a judge.
Until you both settle, or until a court issues a ruling on custody, remember that the general rule applies: each parent has co-equal rights to the physical possession of a child of the marriage. Unless there is some written document establishing custodial and visitation rights, the custodial arrangements are subject to being changed at the whim or caprice of either parent.
North Carolina Courts and Custody
If custody goes to court, you should keep several principles in mind. First, the focus on the best interests of the child in determining with whom your child will reside in essence forces the court to direct its attention principally to you and your spouse. The court, therefore, will carefully examine your conduct in the past and, based on your past history, the court will predict how you will behave in the future. The trial judge is given wide discretion in his or her determination. Appellate review is very limited in this kind of litigation, as the courts of appeal are unwilling to substitute their judgment of the facts for the trial judge who presided over the proceedings.
Second, your child may not necessarily participate in the proceeding, even though his or her welfare is the focus of the proceeding. This is because you, the judge and your lawyers may all agree that appearing in court might be unduly traumatic for your child, or your child may be too young or fragile to understand what might be asked of him or her.
Finally, because the status quo of the formerly intact family will not be sustained due to the dissolution of family ties, rules regarding the burden of proof and other rules of evidence may be relaxed in a custody trial. Thus, the process might even see the judge assuming a more inquisitorial role than usual.
Laws on Child Custody
Case law, North Carolina General Statutes sections 50-13.1 through 50-13.9, and Chapter 50A of the statutes, the latter known as the Uniform Child Custody Jurisdiction Act, provide the parameters for judicial actions regarding child custody. Any parent, relative, or other person, agency, organization, or institution claiming custody of a minor child may bring an action in court. Filing a complaint, counterclaim, or motion in the cause in a prior pending action are the usual methods for putting custody before the court.
1. Welfare of the child
The dominant principle in all NC child custody actions, including actions to modify custody, is that custody will be awarded to the person or institution who “will, in the opinion of the judge, best promote the interest and welfare of the child.” This language from the statute about the judge’s opinion gives the judge an enormous range of discretion as to the factors the judge actually considers as bearing on the child’s best interests and as to the weight the judge assigns to each of these factors.
The factors considered by the court are multiple and various. The judge can consider all those things that might impinge on the development of the child’s physical, mental, emotional, moral, and spiritual faculties.