Determining Child Custody

Child custody is determined according to the best interests of the child. North Carolina courts consider several factors when ruling on custody cases; they don't presume that one parent is better suited to the child's best interests*.

At Rice Law we understand what child custody cases are really about. Our focus is on helping our clients attain the best result for their child custody case. Our attorneys treat each child custody case as unique, focusing on our client's personal and family needs.

Divorce is a complicated and stressful time for children as well as parents. We encourage parents to reassure their families that though they are unable to continue in a married relationship, that children are still cared for and loved despite the family transition.

Common Questions

• What factors does the court consider when determining the child's best interests?
• Who will get custody of our children?
• Explain to me the difference between joint and sole custody.
• What is visitation?
• Can I refuse my spouse visitation rights if they haven't paid child support?
• If I date, can it impact my child custody case?
• Do we need to go to court to establish my child's custody?
• In custody cases do the courts favor one parent over the other?
• What should I bring to court to help with the custody decision?
• Will my child be required to speak in court?

What factors does the court consider when determining the child's best interests?

The court determines the child's best interest based on the following factors:

• Acts of domestic violence between the parties
• The safety of the child
• The safety of either parent from acts of domestic violence against the other parent

When considering custody, the court can consider all the things that might affect the child physically, mentally, emotionally, morally, and spiritually. Though each Judge may weight factors under consideration differently, the primary factors under consideration include the:

• Abductions, child abuse, and neglect
• Age of the child
• Facilitation of visitation and involvement of the other parent
• Home environment
• Legal complaints filed against either parent
• Parental drug and alcohol problems — current and history
• Parent's competency, time available to spend with the child
• Parent's non-marital sexual relationships
• Parent's willingness to keep the other parent involved in the child's life, or efforts to undermine the other parent
• Presence of siblings and their relationships to the parents and each other
• Relocations, such as moves out of state
• Preference of the child [generally from age 10 and up]
• Religion

In nearly all cases, the parent who isn't awarded custody will be granted visitation periods with their child.

Note: An Order of Child Custody can also include provisions for visitation rights of the grandparents. While the parents are typically awarded custody, the law provides for custody of children by others, such as grandparents, based on the case's unique circumstances.

Who will get custody of our children?

Child custody can be decided and agreed upon by the parents. However, if the parents are unable to reach agreement, a court will resolve the issue of custody. The guiding principle is in the opinion of the Judge, who will best promote the interest and welfare of the child.

Explain to me the difference between joint and sole custody.

Joint Custody and Sole Custody are two types of child custody Court Orders; these orders can be further divided into joint physical custody, primary physical custody, and joint legal custody. In North Carolina, the meaning of Joint and Sole Custody is defined in an agreement or Court Order.

Note: It is possible for parents to share Joint Legal Custody, but for one parent to have Primary Physical Custody.

North Carolina Courts generally award joint custody, which gives both parents joint decision-making authority. North Carolina Courts often vest primary custody in one parent and visitation in the other.

What is visitation?

Visitation is the non-custodial parent's time with child. In North Carolina, the law is fundamentally the same with regard to deciding visitation and custody — the decision is made with consideration given to the best interests of the child, parental rights, and the child's wishes. Typical visitation rights include alternate weekends, half of all major holidays, and special days; some visitation also include an evening for dinner or overnight stays during school breaks. Visitation rights can vary based on the child's age; for example, some judges may rule that young children have less disruptions to their environment.

If the Judge is advised that harm or danger could come to a child if visitation is not monitored, a ruling of Supervised Visitation can result. A Supervised Visitation ruling may designate location as well as who is eligible to supervise the visits (e.g., social worker, relative).

Can I refuse my spouse visitation rights if they haven't paid child support?

No; according to North Carolina law, child support payments aren't tied to visitation privileges. Though it may be easy to confuse the two, legal counsel should be sought prior to restricting your ex's visitation rights. Punishment of an ex by restricting their visitation to the child may impair the child's welfare and subject the custodial parent to be held in Contempt of Court for violations of any existing custody and visitation order. Contact your attorney.

If I date, can it impact my child custody case?

It could, especially if your date has contact with the child(ren) and is viewed as having a negative or detrimental effect on the child(ren). In cases that spouses are having a difficult time reaching agreement, the addition of a third party in your child's life could be viewed as a threat to your ex's (and the grandparents) relationship with the child.

If you date, you should not cohabitate or have overnight guests of the opposite sex before consulting an attorney. Your "date" may also be subject to liablity for "criminal conversation" and "alienation of affection". If still married, consult an attorney before you date.

Do we need to go to court to establish my child's custody?

In North Carolina, parents can settle custody and visitation by private agreement. The court doesn't need to be aware of mutually agreed upon custody. It is generally in the best interests of the child, however, to establish and abide by a written document of custody and visitation. Written agreements can provide stability that may not otherwise be present, such as disrupting a child's normal life by repeatedly relocating.

Until both parents come to an agreement or a court issues a ruling on custody, both mother and father have co-equal rights to the position of the child from the marriage.

In custody cases do the courts favor one parent over the other?

North Carolina has abolished maternal preference, which presumed that the mother would be more caring for child during their developmental years.

What should I bring to court to help with the custody decision?

Consult with your attorney. The Judge will perform an exhaustive review of your parenting skills and daily interaction with your child. People with close, regular contact may be called as witnesses (e.g., neighbors, friends, daycare staff, teachers, doctors, psychologists, activity leaders, ministers). You may also want to bring photos or videos of where your child would live with you — interior and exterior images to help convey your child's environment to the judge.

Rice Law has developed a comprehensive approach to the presentation of a child custody case. If we agree to take your case, you will be given a child custody notebook to complete. You will also work closely with our attorneys and staff in the preparation of your case.

Will my child be required to speak in court?

Children aren't required to appear or speak in court during the custody proceeding if you, your attorney, and the Judge agree that it may be traumatic for the child, or if the child is too young or sensitive to understand what is asked. However, children age 10 and older often address the Judge privately in his/her office.