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Quick Facts on Child Custody
There are two (2) types of custody: physical custody and legal custody. Physical custody is typically a determination as to where the child actually will reside. Legal custody is typically a determination as to who makes the decisions for the child.
There are two (2) types of physical custody: sole physical custody and joint physical custody. Sole physical custody is exactly what it sounds like. One parent has the child in his or her physical care exclusively. Joint physical custody does not have a statutory definition, which results in joint custody meaning essentially anything the parties or judge determine it to mean. If your case is in litigation, the court is required to consider a joint custody arrangement if one party requests it.
Because we use the term 'custody' and 'visitation' interchangeably, courts may instead refer to joint physical custody as one party having primary physical custody and the other party having secondary physical custody.
Legal custody typically gives one or both parent the right to make important decisions on behalf of the child. Such decisions could include issues of long lasting significance, such as religious preference, medical procedures, orthodontics or education.
Once a claim for custody has been made in North Carolina, a process called mediation is required in most counties. Mediation sessions can be in a private forum (where the parties have hired a mediator to help them resolve their issues outside of the courtroom) or it can be court-ordered by a court-run program. These sessions are private and anything said at mediation is inadmissible in court.
If you file a lawsuit for custody or make a motion to modify an existing Order in Mecklenburg County, you and the other parent will be required to take a four hour parent education course provided by United Family Services.
In Mecklenburg County, there is typically no 'temporary' custody issue to decide. From the time parents separate, the parent with physical custody essentially has temporary custody of the child(ren) at issue. There will not be a hearing for temporary custody unless there are circumstances "which pose some significant risk to the child's physical or emotional safety" or one of the parties requests a hearing for a temporary parenting arrangement in order to address the status quo of the parties and the children while custody claims are pending.
The standard the Court uses for determining custody is the "best interests" of the child standard. Thus, the judge will grant custody to "such person, agency, organization or institution as will best promote the interest and welfare of the child." N.C.G.S. Section 50-13.2. In making this determination, the judge is required to consider all relevant factors that may have an impact on the ultimate well-being of the child.
In North Carolina, there is no presumption as to who is a better parent. In fact, N.C.G.S. Section 50-13.2 states: "Between the mother and father, whether natural or adopted, a presumption shall not apply to which parent will better promote the interest and welfare of the child."
Any order involving children is always modifiable by a court with proper jurisdiction. Custody orders are not permanent, but remain freely modifiable upon the presentation of evidence of a "substantial and material change of circumstances affecting the best interest and welfare of the child." This may be a positive or negative change.
Does my child's opinion matter to the court when making a custody determination? This issue is typically in the discretion of the judge. It most frequently depends on the age and maturity of the child. The wishes of a child "of sufficient age to exercise discretion" are entitled to considerable weight, but are not controlling to the court. Typically, your child(ren) will not have to testify in court, but instead, will meet with the judge in his or her chambers to discuss his or her wishes.
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In North Carolina either party may petition for alimony, but the court shall exercise its discretion in determining the amount, duration, and the manner of payment, and shall consider all relevant factors, including the marital misconduct of either of the spouses. The duration of the award may be either for a specified or for an indefinite term.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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