Frequently Asked Child Custody Questions from www.womenslaw.org
This information is specific to North Carolina.
What is custody?
Custody is the physical care and supervision of a child (under 18 years of age). Physical custody is used to describe the person with whom the child lives on a day-to-day basis.Legal custody is used to describe the person who has the right to make major decisions concerning the child, including decisions about the child's education, health care, and religious training.
In North Carolina, visitation is also considered a type of custody.
What are different types of custody arrangements?
There are two different types of custody arrangements: Joint/Shared custody and Sole/Exclusive custody.
Joint custody or shared custody means that both parents make the major decisions in the child's life. Minor day-to-day decisions such as bedtime or what the child will wear are up to the parent who is with the child at the time. Joint custody does not mean that a child must live half of the time with one parent and the other half with the other parent. It does mean that physical custody will be shared in such a way to ensure that the child has continuing contact with each parent. Usually, the court will specify with which parent the child will be primarily residing. Joint custody works best if parents can set aside their differences and discuss what is best for their child.
Sole custody or exclusive custody means that one parent has the final decision-making authority concerning the major decisions in the child's life. The child also lives with the parent who has sole custody, also referred to as the "custodial parent." Generally, the court will order that the non-custodial parent will have continuing contact with the child. It is possible for the court to order that the non-custodial parent see the child as often as a parent who has joint custody.
Visitation means that the non-custodial parent has a right to see the children. The amount and type of visitation granted will depend on the ages of the children, how far apart the parents live from each other, and other specific factors relating your child. The court usually likes to set a visitation schedule for the child to spend time with the non-custodial parent. Fixed schedules can include sleepovers, weekends, weekday evenings, shared holidays, school vacations, and summers. A judge may order supervised visitation if the safety of the child is an issue. If there has been domestic violence between the parents, a judge may also order that the exchange of the child take place in a supervised setting or in a public place.
Who can get custody of a child?
Custody can be awarded to the person, agency, organization or institution that will best promote the interest and welfare of the child. An order for custody of a minor child may grant:
- Joint custody to the parents
- Exclusive custody to one person, agency, organization, or institution
- Custody to two or more persons, agencies, organizations, or institutions
In North Carolina, in order for a nonparent relative to be granted custody of a child, he or she must prove that both parents of the child are unfit to raise the children or that both parents have neglected their children.
Do I need a lawyer to start a custody case?
You do not need a lawyer to file for custody. However, custody cases are often complicated, and a lawyer can help you through it. It also may be difficult for you to file the proper paperwork without the help of a lawyer. Also, if the other parent has a lawyer, it will be particularly helpful if you have a lawyer as well.
You can talk to or get a lawyer at any time during the course of your custody case, BUT getting a lawyer at the last minute usually will not be grounds for postponing your case. Also, many lawyers will not take a custody case at the last minute.
In which state can I file for child custody?
The general rule is that North Carolina state courts have authority to hear a custody case if North Carolina is considered your child's "home state." A child's "home state" is the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months. In the case of a child less than six months old, the "home state" is the state where the child has lived from birth. (Temporary absence from the state does not change anything.)
If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, either you or the other parent can start a custody action in the state in which your children most recently lived for at least six months. *There is an exception to this if you are fleeing a state due to domestic violence.*
Example: If a family lives in state A for one year, state A is the home state. If the same family lived in state A for one year and then one parent moved to state B with the children and filed in state B after living in state B for only four months, state A is still the home state.
There are exceptions to the home state rule as stated above. In some cases, you can file for custody in a state where the children and at least one parent have "significant connections" to the state. Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state decide the case. This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this.
Can I get an emergency order for temporary custody?
An emergency custody order is a temporary order that only lasts until you go to court and have a full custody hearing. You may request emergency custody if you believe there is danger of serious or immediate injury to you or your minor child.
If North Carolina is the "home state":
The judge, or the magistrate who acts as a judge, may give you a temporary custody order if s/he finds the child is exposed to a substantial risk of bodily injury or sexual abuse or if there is a substantial risk that the child may be abducted or removed from the state of North Carolina. Filing for emergency custody is a complicated process, and it is recommended that you consult with an attorney to see if your case warrants emergency relief.
If North Carolina is not the "home state" but you and your child are in NC:
You can file for emergency custody if the child has been abandoned or there is an emergency. There is an emergency if a custody order is necessary to protect the child because the child, a sibling of the child, or parent of the child has been threatened with or subjected to abuse.
(see above section for definition of home state)
You may also request temporary custody through a domestic violence protective order.
When are custody orders not necessary?
You do not need a custody order:
- to get child support. In order to receive assistance with obtaining child support, call your local Child Support Enforcement Office.
- to receive welfare assistance, medical care, and medical insurance for your child.
- to enroll your child in school or to allow somebody else to take care of your child temporarily.
There are drawbacks to starting a custody case. If the other parent is presently uninvolved with the child, he or she may become involved just because a case was started. Also, if the other parent fights for custody, the case may drag on for a long period of time, sometimes over a year. You may need to go to court several times, especially if the other parent also wants custody. The court will look into many aspects of your personal life that you may prefer keeping private such as past mental problems, your criminal record, substance abuse issues, and details of your personal and sexual relationships.
Before starting a custody case, ask yourself the following questions:
- Will the other parent be cooperative?
- Will he or she fight for custody?
- Is he or she likely to get a lawyer?
- If he or she has a lawyer, will I be able to afford one too?
What are the steps for filing for custody?
It depends on the particulars of your case. To find out what the process will be like for you, please talk to a lawyer in your area. Some general information is below.
In order to start a custody case, you need to file a custody complaint with the court in the county in which your child has lived for the last six months. You will also need to file at least two other forms with your custody complaint, a Domestic Civil Action Cover Sheet and a Civil Summons. Lastly, there is a $70.00 filing fee to start the custody case. If you cannot afford the $70.00 fee, you can fill out a form titled "Petition to Sue as an Indigent" and request that the Court waive the filing fee for you. These forms should be available at the courthouse or from the North Carolina courts website, www.nccourts.org/Forms/FormSearch.asp.
After you have filed the paperwork and paid the fee to start a custody case (or received a fee waiver), you will have to make sure that the defendant is served with copies of the documents you have filed. Serving the defendant means giving the defendant copies of the documents you have filed. To do this, you will have to take copies of all the documents to the sheriff and pay the sheriff $5.00 to deliver the papers to the defendant. If the defendant lives out of state or if you cannot find the defendant, you should consult with an attorney to discuss ways in which you can have the defendant served with the custody papers.
Once you start a custody case, many counties in North Carolina require that you and the defendant attend a parenting education class before go forward with your case. To find out if you are required to attend parenting education, consult with the court clerk at the courthouse.
Additionally, counties in North Carolina that offer mediation require that you first try to resolve your case by mediation. Mediation is an opportunity to resolve a case without going to court and does not cost you anything. In counties where mediation is required, somebody from the court will sit down with you and the defendant to try to work out an agreement relating to custody and visitation. If your mediation is successful, your custody and mediation agreement will be written out and approved by a judge, thus becoming a court order.
If the mediation is not successful, your custody case will then go to trial. A judge will hear from you and the defendant and make a decision about who should have custody, what type of custody that person should have, and what type of visitation the non-custodial parent should have
Do I have to attend mediation if there has been domestic violence between me and the other parent?
It depends. According to North Carolina law, in counties in which mediation is offered, it is required unless a judge or other officer of the court decides that you do not have to attend. To request a waiver of mediation, you can fill out a form titled "Motion and Order for Waiver of Mediation." There are several bases for the court to grant the waiver, one of which is if the defendant has abused you. You can also request a waiver of the mediation requirement if you live more than 50 miles from the courthouse of the county where you are filing your case, you and the defendant have agreed to private mediation (which you would have to pay for on your own), the defendant has abused or neglected the child(ren), or any other reason why you believe the mediation would cause you undue hardship.
How will a judge make decisions about child custody and visitation?
Custody is based on what the judge believes is in the best interest of the child. The judge will consider all available evidence and all relevant factors such as any special needs of the child, the quality of care the child is receiving, the child's educational performance, the child's involvement in extracurricular activities, and the child's physical and emotional state.
The judge will also examine both parents' ability to care for the child, employment history, living situation, substance abuse issues, mental health issues, and dating relationships. The judge may also ask to hear from people who have information about either parent's parenting abilities or information about the child.
Lastly, if the judge finds that domestic violence has occurred, the judge must enter an order that best protects the children you who were the victims of domestic violence. The factors the judge must consider are the same as they would be if you were filing for temporary custody as part of a DVPO.
When you go to court, you want to be prepared with as much information as possible about yourself, the other parent, and your child. In order to show the judge that you deserve custody of your child, it is important that you have a good knowledge of your child's interests, abilities, and care.
Once the trial is over, the judge will sometimes make his or her decision verbally while still in the courtroom. However, sometimes the judge will not make a decision right away; rather he or she may issue a written decision on a later date. In either case, the judge will eventually issue a written decision. This decision is called on order. You must comply with the order as it is written or you could be "held in contempt of court". When a judge holds someone in contempt of court, the judge is punishing that person for not doing what the court said to do.
If you are confused about anything in the order, ask the judge to explain the terms of the order.
Can a parent who committed violence get visitation?
Sometimes. Visitation by the parent who committed violence may be allowed, but only if the judge believes that proper measures can be taken to insure the safety of both the child and the parent. This may include an exchange in a protected setting or supervised visits. If the judge does not believe that the victim remains at risk from the abuser, the judge may order unsupervised visitation without any measures to protect the victim and child. Therefore, if you feel there is still a risk of violence, you or your lawyer must convince the judge that you and your child need protection.
If a custody order is already in place, how can I change it?
Because custody is decided in the best interest of the child, an order is never permanent. If you have a custody order already in place, you can petition the court to make changes to it or modify it. Generally, you can only ask to have a custody order modified if there has been a "substantial change in circumstances" such as a change in money or lifestyle. In North Carolina, a finding by a judge that domestic or family violence has occurred since the last custody determination counts as a change in circumstances.
To modify a custody order, you will need to go to the court that issued the order, even if you have moved. Generally, once a court has jurisdiction, that court will keep jurisdiction, even if you move to another state. If you have moved, you can ask the court to change the jurisdiction to the new state that you are in. This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this.
Can I change the state where the case is being heard?
It depends. If you, your child(ren), the other parent, and anyone acting as parent have all moved to another state, you may be able to change the state where the custody case is being heard. If the judge finds that the child, the parents and anyone acting as the parent does not have significant contact with the original state, or if they are not presently living in the state, s/he will consider changing the state where the case is heard.
Also, if you are a victim of domestic violence, North Carolina allows the judge to consider this in deciding if a particular state is no longer appropriate for the case. You will have to ask the judge who is hearing the case to consider allowing the case to be heard in another state. This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this.
Can I get temporary custody if I have a restraining order (DVPO) against the other parent?
If a restraining order (called a Domestic Violence Protection Order or DVPO) has been granted due to domestic violence, the order may include temporary custody of minor children and temporary visitation rights. Be sure to tell the judge if you would like temporary custody included in the DVPO. Custody granted with a restraining order can only last for up to one year expires with the order.
If you request temporary custody as part of your DVPO, the judge must consider the following factors when determining custody or visitation rights:
- whether the minor child was exposed to a substantial risk of physical or emotional injury or sexual abuse
- whether the minor child was present during acts of domestic violence
- whether a weapon was used or threatened to be used during any act of domestic violence
- whether the abuser caused or attempted to cause serious bodily injury to you or your minor child
- whether the abuse placed you or your minor child in reasonable fear of imminent serious bodily injury
- whether the abuser caused you to engage involuntarily in sexual relations by force, threat, or duress
- whether there is a pattern of abuse against you or your minor child
- whether the abuser has abused or endangered the minor child during visitation
- whether the abuser has used visitation as an opportunity to abuse or harass the aggrieved party
- whether the abuser has improperly concealed or detained the minor child
- whether the abuser has otherwise acted in a manner that is not in the best interest of the minor child
Also, if the judge grants visitation as part of a DVPO, the judge must also provide for safety and well-being of you and your minor child. The judge may also consider supervised visitation, exchanging the child in a safe place, and other factors that would contribute to the child's safety.
If there is a custody order in place, can I take my kids out of the state?
It depends on what your order states. The custody order may allow you to take your child out of the state, prohibit you from taking the kids out of the state, or not address this issue. The judge may require that you post a bond or other security conditioned upon the return of the child to the state. Please see go to www.womenslaw.org for more information, and ask a lawyer in NC who has reviewed your custody order.
If my spouse/ex takes the kids out of state without my permission, can I charge him with kidnapping?
Usually not. If the other parent takes the children out of state or somewhere else in the state in violation of your rights to custody or visitation under a court order, you can file a petition for contempt of court. If the other parent purposefully attempts to deny you your custody or visitation rights under a court order, that parent may be guilty of a crime. Please see go to www.womenslaw.org for more information, and ask a lawyer in NC who has reviewed your custody order.
Who is responsible for providing child support?
Any parent, person, agency, or institution having custody of a minor child can bring a motion to the courts for the support of the child. Generally the father and mother are responsible for the support of a child. Considerations for child support include:
- The relative ability of each parent (or other guardian) to provide support
- The inability of one or more of them to provide support
- The needs of the child
Uniform state guidelines are used to determine the child support obligations of each parent. If there is a change in circumstances of either parent, you can petition the court to modify or cancel the order for support.
Can I get financial support for my child(ren)?
First of all, you do not need a custody order to get child support. Even if you do not have a custody order, the other parent of your child has an obligation to help support your child. If your child is living with you, you can go to Child Support Enforcement and ask them to start a child support case on your behalf. Starting a custody case in order to get child support can backfire because the defendant may ask for custody of the child(ren).
If you are seeking custody of your children and need help supporting the children, you may want to ask for child support. You can do this by going to Child Support Enforcement or by asking for child support as part of your custody case. If you are requesting the court to give you both custody and child support, you need to specifically state this when you start your custody case.
Can a parent who does not have custody have access to the child's records?
In North Carolina, unless there is a court order stating otherwise, both parents have a right to access the child's education and health records. Even if one parent has sole custody, unless the court order specifically prohibits the non- custodial parent from accessing the records, the non-custodial parent has a right to access those records.
PLEASE VISIT WWW.WOMENSLAW.ORG FOR MORE INFORMATION
The information on this website and in this handout is for informational purposes only and does not constitute legal advice.