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An In-Depth Discussion of Child Custody
(provided by Gilpin & Hatcher, P.C.)

The issue of custody is almost always the most litigated issue in family law. Even though issues of spousal support, child support, and equitable distribution are normally present, parents very naturally place the most emphasis on the issue of custody. There are several steps a court must take before it has the opportunity to hear a case dealing with custody.

How does a court determine jurisdiction in custody cases?

The court must first determine whether it has jurisdiction in which to make a ruling. In Black's Law Dictionary, the term "jurisdiction" is defined as "the court's power to decide a case or issue a decree."

In June, 1999, North Carolina adopted the Uniform Child Custody Jurisdiction and Enforcement Act (also known as the "UCCJEA"). The UCCJEA applies to decisions made by a court on or after October 1, 1999.

The purpose of the UCCJEA was to avoid jurisdictional competition with other states. For instance, if a child is living with one parent in the State of North Carolina and then relocates to another state, the issue for a court is to determine whether it still has jurisdiction over that child, i.e. whether it still can hear the case. The UCCJEA allows the court to make its initial rulings on a custody case if the child's "home state" is North Carolina. N.C.G.S. Section 50A-201. A home state is the state where the child has resided for at least six (6) months preceding the institution of the lawsuit. If a child is less than six (6) months old when the custody action begins, then the home state means the state in which the child has lived since birth. N.C.G.S. Section 50A-102 (7). The idea behind the UCCJEA is simply that if there is a home state, then that state should be the state to determine the custody of the child. Except in limited circumstances, a home state retains that jurisdiction to modify a custody order. If there is an emergency, a court in a state other than the home state may enter another custody order but typically the new order will be only temporary in nature. Generally speaking, a home state continues jurisdiction unless, after the child relocates with a parent, another jurisdiction seeks to modify that order. In doing so, the parent seeking to modify the order must show that the home state no longer has a significant connection to the child.

What is the difference between jurisdiction and venue?

Black's Law Dictionary defines "venue" as "the proper or a possible place for the trial of a lawsuit, usually because the place has some connection with the events that have given rise to the lawsuit."

Once it is determined that a party has chosen the right jurisdiction for an initial custody action, then it must be determined whether that jurisdiction is also the appropriate venue. For purposes of custody determinations, venue is the place where the child lives or is physically present or where a parent resides. N.C.G.S. Section 50-13.5.

The Process:

Now the court can hear the claim . . . but, does the person making the claim have a right to do so, and if so, how?

North Carolina General Statutes Section 50-13.1 states the following:

"Any parent, relative or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided. Unless a contrary intent is clear, the word "custody" shall be deemed to include custody or visitation or both."

Therefore, according to the plain language of the law of North Carolina, practically anyone can make a custody claim. However, simply making a claim to the court does not mean the claim is valid or will be granted. Our courts guard against non-biological parents making claims for custody of children. Significant burdens of proof must be met to have a valid claim for custody of someone else's children.

Do we have to go to court?

You always have a right to try and settle any issues of litigation, including custody, prior to being heard by a judge . . . even if you are on the courthouse steps the day of trial.

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.

In Mecklenburg County, North Carolina, there are two (2) sessions the parties are required to attend. The first session is a group orientation regarding the custody mediation process. The parties may attend this session separately. The second session is an actual child custody mediation. This is a private mediation with the parties and a mediator. No lawyers are involved and there is no cost. As in all settlement negotiations, any written or verbal communications during mediation are privileged and inadmissible in any court proceeding. So, this is a great time to take a real stab at settling the issues and telling the opposing party exactly what you want. Neither the mediator nor any other party involved in the mediation process can be called to testify as to any discussions had during the mediation.

In certain situations, the court may waive the custody mediation requirement. A party must convince the court that inconvenience or danger or other circumstances prevent the mediation form being meaningful or productive. For instance, one party may live in another state whereby attending the mediation from being meaningful is highly inconvenient. Also, if there is a history of domestic violence (whether or not a protective order has been entered) a court may believe danger exists for one or both of the parties if they attend the mediation. Finally, if one of the parties has a drug or alcohol addiction or problem such that he or she will probably not be able to engage in meaningful discussion, the court may waive mediation. Each case is different and each judge looks at facts differently so you must be fully prepared to participate in mediation even if you believe there is good cause for it to be waived.

In Mecklenburg County, North Carolina, child custody mediation is only waived if there are instances of domestic abuse, including domestic violence or evidence of physical abuse, allegations of alcohol or substance abuse, allegations of severe emotional or psychological abuse, if either party lives fifty (50) miles outside of Mecklenburg County, or for any other good cause. Domestic abuse "refers to" acts of intimidation, harassment, coercion or violence perpetrated by an intimate partner against a current or former intimate partner. Nonphysical acts of domestic abuse include, but are not limited to, emotional abuse, isolation, threats, and the use of gender privilege. Physical acts include, but are not limited to, pushing, shoving, choking, slapping, hitting, using weapons, and physically detaining. These acts serve to maintain the abuser=s power and control over the abused person." If a party believes that any of these issues are relevant, then that party should submit a motion to the court asking for waiver of the mandatory mediation for this good cause. It is in the discretion of the court as to whether it is appropriate for the mediation to be waived.

If the parties are able to resolve custody, then the mediator will prepare a parenting agreement setting out the terms of you custody settlement. The mediator will encourage you to return that agreement to an attorney for his or her review, as often times the agreements can be incomplete or somewhat vague in nature. The mediator is not allowed to give legal advice. If the parties are unrepresented, the mediators typically suggest the parties to seek counsel. However, if the parties choose not to seek counsel and agree to the terms of the Parenting Agreement, then the agreement is forwarded to the judge assigned to the case and put into a court order. The Parenting Agreement is then an order of the court and subject to enforcement and modification.

If the mediation is unsuccessful, then the parties are left with no choice but to proceed with court or attempt to negotiate privately, with or without the assistance of lawyers.

What is Parent Education Class? Do I have to attend?

In Mecklenburg County, North Carolina, all parties to custody and visitation cases, including contempt motions and motions to modify existing custody orders, are required to take a four (4) hour parent education course provided by United Family Services. This is not a class to teach the parties how to bathe or feed a child but, rather, how to attempt to communicate and handle custody and visitation issues productively to minimize the impact on your children. Each party will receive a Notice of Court Events to register for the class and shall pay his or her respective fees and expenses as charged by United Family Services and as approved by the Administrative Office of the Courts. Within forty-eight (48) hours of receiving the notice, the party must contact United Family Services to register. There will be two (2) classes. The first class is an orientation. The second class is the actual parenting course. The parties do not have to attend the classes together.

In Mecklenburg County, even if you have resolved custody, you still are required to attend parent education courses. A certification of completion will be given to you at the end of the course. This certificate will need to be provided to the Family Court Administrator in order for you to be given credit for completion. If you do not live in Mecklenburg County but are involved in litigation there, you may be able to take a similar course in your own county or state. A listing of similar courses is available through United Family Services or the Family Court Administration office in Mecklenburg County.

If a party fails to attend his or her Parent Education course, Mediation Orientation, and/or Mediation appointment by the scheduled date as provided in the Notice, without good cause, or fails to notify the Family Court Administrator office of settlement or dismissal prior to the Mediation Orientation or Mediation appointment date, the party may be sanctioned up to $100.00. Pursuant to the 26th Judicial District, Family Court Division, Local Rules for Domestic Cases, Rules 7a and 22.

Mediation failed. We have received our Parent Education Certificates of Completion. Let's Go to Court!

The judge is now ready to determine the issue of custody.

In Mecklenburg County, North Carolina, 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. It is possible that a temporary parenting arrangement may be requested by either party prior to the permanent custody trial. Because of the inability of our courts to reach every case as quickly as we would hope, only circumstances "which pose some significant risk to the child's physical or emotional safety" will be entitled to a hearing for a temporary parenting arrangement. An example of a significant risk may include repeated "snatching" of a child between the parents. 26th Judicial District, Family Court Division, Local Rules for Domestic Cases, Rules 7A.11.

A motion for a temporary parenting arrangement is first submitted to the judge for review. If the judge believes the allegations support cause for a hearing, the judge will schedule a hearing and will notify the parties. Typically, the judge will only have one (1) hour in which to hear the case and make a determination as to whether a temporary parenting arrangement is needed.

A party may also make an emergency motion for a temporary custody order. "A temporary order for custody which changes the living arrangements of a child or changes custody shall not be entered ex parte and prior to service of process or notice, unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of the North Carolina courts." Section 50-13.5 (d)(3).

Emergency motions are different from temporary parenting arrangements due to the option of the party making the motion to approach the judge ex parte. This means that the party seeking the emergency motion does not even have to notify the other party. If the judge determines the emergency situation exists and changes the custody of the child at issue, it is only fair that the party who had physical custody be allowed to tell his or her side of the story. Therefore, if the emergency motion is granted, the judge will schedule a second hearing approximately ten (10) days after the emergency motion is granted to hear the case, including evidence from both parties.

If a party has filed a motion for temporary parenting arrangement or an emergency motion seeking a temporary custody order and the court finds that the motion is not well grounded, then the party seeking that change may be sanctioned by the court. These sanctions are in the discretion of the court and may include, but are not limited to, attorney fees. 26th Judicial District, Family Court Division, Local Rules for Domestic Cases, Rules 7A.11.

The Best Interest Standard

The judge is required to make an initial custody determination after it hears all the evidence presented by both parties. This evidence can be in the form of testimony or documents produced by each party. Once the evidence is heard, the judge enters his or her order. An order will grant custody to "such person, agency, organization or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party and shall make findings accordingly. . ." N.C.G.S. Section 50-13.2.

This standard is often referred to as the "best interest of the child" standard. This is the standard upon which the judge must use to make his or her initial custody decision. Often, parents believe they know what is in the best interest of their children. While this may be true, a parent must produce those facts for and convince a judge. Ultimately, it is the judge's decision to determine what he or she believes is in the best interest of that child or children.

Does Mom always get custody?

Absolutely not. While this is a common misconception, there is NO presumption as to who is a better parent. North Carolina General Statutes Section 50-13.2 states: "Between the mother and father, whether natural or adopted, presumption shall not apply to which parent will better promote the interest and welfare of the child."

The maternal preference, often referred to as "the tender years" doctrine, was abolished in North Carolina many years ago. When a court finds that both parties are fit and proper persons to have custody of the children, then the court must look at a broad range of factors in determining which parent will best serve the interests of the child. These factors are determined from the circumstances of the case and may include the physical and mental capacities of the parties, historical caretaking responsibilities of the parties, work requirements of the parties, and domestic violence issues to name but a few.

Can my children testify?

The answer to this question is typically in the discretion of the judge. It most frequently depends on the age of the child. The basic rule is the wishes of a child "of sufficient age to exercise discretion" are entitled to considerable weight, but are not controlling. (Hinkle v. Hinkle, 266 N.C.189 (1966).) For example, in the Hinkle case, both the trial and the appellate court ruled that the ten (10) year old child, who was the subject of the litigation, was old enough for his testimony to be considered by a judge.

Testimony of children may be heard in open court on a witness stand, but in North Carolina, a common practice is for a judge to meet with a child privately in camera (in the judge's chambers). In order for a child to meet with a judge in camera, the consent of both parents must be given. A child's wishes will be only one (1) factor that is considered by court in the determination of custody. This is not because of any legal right the child possesses to have his wishes granted, but because the consideration of such wishes will aid a court in making a decree for what is in that child's best interest and welfare. (Brooks v. Brooks 12 N.C.APP 626,184 SE 2D 417 (1971).)

Let's break down the different types of custody . . .

In North Carolina, we commonly believe that 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.

Physical Custody

There are two (2) forms 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 with visitation being had by the other party.

So, what is joint custody? Strangely, there is no definition in our statutes for joint physical custody. This result is that joint custody means essentially anything the parties or judge determines 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 refer to joint physical custody as a situation in which one party has primary physical custody and the other party has secondary physical custody.

Outside the courtroom, parties may agree to joint physical custody by setting a visitation schedule that works for the children and for the convenience of the parties based on their particular needs. For example, a joint physical custody arrangement may be a week on a week off pattern. Another joint physical custody schedule may be an every other weekend pattern of visitation. If the parties choose to label the physical custody arrangement a joint physical custody arrangement, then so be it.

Legal Custody

The second type of custody is legal custody which typically focuses on decision-making for the child. If a parent has sole legal custody, that parent has the right to make all decisions on the child's behalf, even those which have long lasting significance. Joint legal custody, on the other hand, usually requires both parties to discuss any decisions that need to be made. However, as with physical custody, the use of the word is joint is ambiguous and subject to the definition of the parties and/or the court. The parent with day-to-day physical custody of a child often makes those day-to-day decisions without the necessity of consulting the other parent. But, when there are issues of long lasting significance, such as religious preference, medical procedures, orthodontics or education, then the parties will need to consult each other prior to a decision being made. Decisions that have long lasting significance on a child's life will ultimately affect the parents' lives as well. Also, those decisions may affect the other parent's ability to have visitation with the child, and thus typically must be agreed upon by both parents.

To illustrate, one parent might sign up a child for a soccer competition that lasts the majority of the summer. If the other parent has the child during the summer in his or her physical care, that parent's visitation time will clearly be interrupted by all the practices and games that will be scheduled during that time.

A common problem with "joint" legal custody is that no one party has final decision-making power. This arrangement often results in a stalemate. If neither parent is willing to compromise, no decisions are made and the child suffers. Parents sometimes have unrealistic expectations of how they will co-parent in the future. These unrealistic expectations or a need to reach a "global settlement" on all issues with the other parent often result in joint legal custody agreements or orders. Even child custody mediators regularly suggest such arrangements with the hopes that the parents will maturely focus on the needs of their child over their needs to "win" in a discussion with the other parent. Sometimes the parties agree to return to mediation or consult a third party to resolve their disagreements. Unfortunately, all of these arrangements require additional time and money which ultimately impacts the child. As a result of these problems, many parents avoid joint legal custody arrangements. Instead, they require discussion of significant child-related issues so that both parents may voice their opinions and attempt to reach an agreement. However, if no agreement is made, then one party will have the right to make final decision-making powers between them for different topics. For example, one parent may have this power for medical issues while the other parent has it for school issues. Ultimately, the decision is made and the other parent always has the right to challenge the decision in court.

Sometimes parents lack the ability to communicate about even the simplest issues involving their children. Perhaps this problem is a lack of maturity or perhaps it is due to other events which took place in their relationship. Whatever the motivation, the parents simply are at a standstill. In these situations, the court may appoint a parent coordinator to assist the parties in learning to parent together and effectively communicate. The parent coordinator is paid by both parties and answers directly to the court. Each coordinator follows his or her own schedule but they all strive to help the parents reach a point where the coordinator is no longer necessary. The parent coordinator is appointed by a court order and has the power to resolve issues in dispute by the parents. By using the parent coordinator, parties may save time and money spent on lawyers and court proceedings as well as learn to work together for their children's benefit.

Can I ever modify my order?

It is important to note that any order relating to children is always modifiable by a court. Custody orders are not permanent, but remain freely modifiable upon the appropriate evidence of the changed circumstances. (Williams v. Williams, 91 N.C. APP 469,372 SE 2d 310 (1988) ) This is often the reason why lawyers tend not to put issues of custody and visitation into a non-modifiable agreement. If issues of custody and child support arise after an agreement has been executed, then a court may reach into that agreement and pull out the terms relating to custody and support. Recent case law in North Carolina gives some power to the custody terms in out of court agreements, but still allows our courts to determine what is in the best interests of the children.

If the terms of custody are in an order filed with the court, a parent may always request a modification of that order. As children grow, their needs change as do their preferences for activities. In order to modify a custody order, the party requesting a modification must show a substantial and material change of circumstances that materially affects the best interests and welfare of the child. N.C.G.S. Section 50-13.7. This rule applies to a court order for custody or an agreement related to custody that has been incorporated into a court order.

What is a substantial and material change of circumstances that materially affects the best interests and welfare of a child?

It is important to remember that every case is different and, therefore, the change which is considered enough in one situation may not be enough in another. The court has sole discretion in determining this burden. However, as means of example, remarriage, relocation, or a change in one party's employment may be sufficient if the party requesting a modification can show that any or all of these changes will materially affect the best interests and welfare of the child.

Before 1998, North Carolina courts required that a party show that the substantial change adversely affected the child. This is no longer the case. Today, all a party requesting a modification must show is that there is a change which materially or substantially affects the welfare of the child, regardless of the positive or adverse effect of the change. One must prove the affect on the child. Too often a party focuses only on proving the change and neglects to show the impact on the child. Remember the change must rise to the level of "substantial and material" and the affect on the child must be "material." Although this is a burden which may be met, it is not insignificant. Serious thought should be had before spending the time and money necessary for a motion to modify custody or visitation.

Information provided by:
Gilpin & Hatcher, P.C.

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