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Whether it’s due to a recent divorce or simply because they have different ideas about where and how a child is raised, legal custody brings up a lot of questions. Fortunately, many parents settle these issues themselves. With help from an experienced and objective North Carolina family lawyer, you can create structured and well-planned custody and child support agreements that work for everyone. However, sometimes it becomes necessary to have custody or child support disputes settled by the court. And in those situations, you’ll want a skilled advocate working for you and your child’s best interests.
Attorney Jonathan Breeden of the Breeden Law Office has been helping families resolve custody and visitation issues in Johnston, Wake, and Harnett County for more than 20 years. He has considerable experience and a reputation for achieving the best possible outcomes in a wide range of family law cases. Let us review your situation, explain your custody options, and put a plan in action that gives you and your children every opportunity for a bright future.
To learn more about how Jonathan Breeden can help with your child custody case, call (919) 661-4970 today.
Getting Custody of Child in North Carolina
Child Custody in North Carolina
People generally think of custody as where the children live. However, there are other aspects to custody. In North Carolina, custody may include:
- Physical custody — when a parent has the right to have the children live with him or her.
- Legal custody — when a parent has the right to decide how a child raised. The legal custodian would make decisions regarding the child’s school, medical care, religion, and outward appearance.
The general rule until the parents or court decide differently is that both parents have equal rights to physical and legal custody of their children. However, after mutual agreement or a judge’s ruling, the parents may not share the same degree of physical and legal custody. For instance, one parent may retain primary physical custody, but both may agree to share legal custody and make decisions together.
Types of Child Custody
Physical custody can take several different forms in North Carolina. Custody may be primary or secondary, temporary or permanent.
- Primary Custody — In some situations, a judge will award primary custody to one parent. This means the children will live with this parent full-time.
- Secondary Custody — When one parent is awarded primary custody, the other parent may be awarded secondary physical custody in the form of visitation.
- Joint Custody — A judge can split the amount of time the children live with each parent equally, which is known as joint physical custody. The children will spend an equal number of nights with each parent.
- Temporary Custody — Temporary custody is the form of custody awarded after your first court hearing. In Johnston and Harnett counties, these hearings often happen just a few weeks after your custody complaint is filed. Temporary custody has a time limit and is not prejudicial to either parent.
- Permanent Custody — Permanent custody is awarded after the final trial on your custody complaint. The court will enter an order that remains in effect permanently unless the court enters a new order at some point. However, permanent custody can only be changed if one parent can demonstrate a substantial change in circumstances affecting the minor children.
Legal custody may go to the primary parent or remain split between the two. In North Carolina, it is presumed that the parties will have joint legal custody and the court must make specific findings as to why joint legal custody would not be in the child’s best interest in order to award one parent sole legal custody.
What is Visitation?
The time when a non-custodial parent is allowed to see his or her children is known as visitation or secondary physical custody in North Carolina. Visitation or secondary physical custody can encompass anywhere from one night a year with minor children up to one day shy of joint custody, depending on your family’s circumstances and what a judge decides is in the best interest of the child. The judge will use the same principles behind determining custody when deciding on visitation rights and restrictions.
It’s rare for a parent to lose the right to see his or her children, but rules can govern the arrangement, such as when and where the non-custodial parent can see the children, how often, and if there must be another adult present.
Supervised visitation is when the judge deems it necessary for the non-custodial parent’s time with the children to be monitored. This can happen when a parent has a history of alcohol or drug use, abusive behavior, or any previous actions that may create a dangerous environment for the children. It might be a family friend, relative or a social worker who is present when the non-custodial parent has the children. This arrangement could be permanent or for a certain period of time until the parent is deemed reliable and safe.
Child Custody Rights If You’re Not Married
When two parents are not married, they have the same custody and visitation rights to their children. Although the mother was once favored in child custody situations, that is no longer the case. North Carolina courts give both parents equal consideration when evaluating who should have custody and how to split visitation.
Courts consider things like which parent is the primary caregiver, how old the children are, which parent the child prefers to live with, and the ability of each parent to care for the children. The court will be most interested in doing what is best for the child. If you want to seek residential or full custody of your children, or if you need to establish visitation, it’s important to work with an attorney who is familiar with the local courts and what they consider relevant.
Attorney Breeden knows how to show the judges in Wake, Harnett, and Johnston County that you are a good parent who deserves custody and visitation. We can work to find a solution that works well for the entire family.
North Carolina Focuses on the Child’s Best Interests
If the issue of custody and visitation is before the court, the judge has the discretion to determine who will “best promote the interest and welfare of the child.” Custody decisions are taken very seriously and judges will look at a great number of factors to determine the best situation for the children moving forward. There is no presumption in North Carolina that a mother or father is better suited to care for the children.
Some of the factors that affect the best interest of the children are:
- The children’s ages
- The children’s developmental needs
- The wishes of the children, if they have the mental capacity to understand the significance of the decision
- The mental and physical health of the parents
- The parents’ housing situations
- The environment within each parent’s home
- If there is evidence of drug or substance abuse by one of the parents
What Can I Expect from a Child Custody Hearing?
Mediation in North Carolina Custody Cases
Under North Carolina custody laws, judges may send parents through mediation before taking it upon themselves to determine custody and visitation. Mediation is another way to solve a dispute. The parties will sit down with an objective third party, known as the mediator, to discuss the issues and try to come to an amicable resolution.
The purpose of the mediation is to:
- Reduce any ill will felt between the parents
- Offer the parents informed choices regarding custody and visitation
- Develop an agreement that’s in the best interest of the child
- Provide a confidential place that may minimize stress on the parents and child and facilitate cooperation
An agreement formed during mediation will be submitted to the court in writing, and the judge or the parties’ attorneys will work it into the final custody order for the judge’s signature.
Is Mediation Always Required?
Either parent can move to have the mediation requirement waived. In some cases, the judge will do so. Reasons to waive the mediation requirement may include:
- Unreasonable hardship on a parent, such as living more than 50 miles from the court
- Allegations of child abuse or neglect by a parent
- Allegations of substance or alcohol abuse
- Allegations of severe psychological or emotional problems
- A domestic violence protective order protecting one parent from the other
Whether you want to try to waive the mediation requirement or you want someone to support you through the process, having an experienced North Carolina custody attorney by your side is important. North Carolina child custody law can be specific, and you need to know your rights to be able to fight for what’s best for your child.
How the Judge Determines Custody and Visitation
When a judge is presented with a custody case, his or her duty is to look at only what’s best for the child.
The judge will gather information regarding the parents and any minor children. This includes reviewing the initial complaint and answers from the parents that provide basic information about the children, where they’ve been living, and if there are any allegations of physical abuse, neglect, or substance abuse. The judge will likely hear testimony from the parents and other relevant parties. If someone lives out of North Carolina, the court can order that person’s testimony be taken out of state, possibly over the phone, via Skype, or through other electronic means.
During this time, the judge may put a temporary order in place to ensure a consistent situation for the children while a final custody order is determined.
The judge may or may not speak with the children. Whether or not children’s opinions regarding where they will live matter to the court depends on their age and ability to understand the consequences of this decision. If the judge does find it reasonable to speak with the children, he or she may do so in chambers instead of in a courtroom, which could be traumatic for the children.
Once the judge feels he or she has gathered the necessary information regarding the family, he or she will try to create a custody situation that best promotes the welfare of the children. In general, parents each have a right to physical and legal custody of their children. However, the judge will ultimately decide whether those rights should be shared equally.
Some factors that a judge will consider when determining custody include, among others:
- Each parent’s relationship with the children
- Each of their homes
- The children’s ages and development needs
- The mental and physical health of the parents
- Any evidence of physical or substance abuse by one of the parents
The judge has a wide range of discretion on this matter and may grant sole custody to one parent, with or without visitation rights to the other, or joint custody. The most common situation in North Carolina is that one parent has primary physical custody and the other parent has secondary custody or visitation rights. The amount of time the children split between the parents can vary greatly depending on the family’s circumstances, but the judge will try to make sure both parents have significant access to the children.
Can Custody or Visitation Be Modified?
The final custody and visitation order made by a judge is permanent unless another order is made at some point. However, parents can alter custody and visitation agreements outside of court as necessary.
To make permanent changes to a custody order, either parent can also file a petition for modification. But he or she will need to show a substantial change in circumstances has occurred and that it’s in the best interest of the children to alter the current order. This can be a challenging standard to meet.
How Long Can a Child Custody Case Take?
North Carolina Child Custody Issues
When you call Breeden Law Office, Jonathan can answer your questions about numerous issues involved in child custody, visitation, and child support. Among the common types of issues Jonathan handles are:
- Custody Evaluations – At times a court may find it appropriate to have a psychologist speak to parents and children involved in a custody matter. Learn more about what a custody evaluation is, how one is performed, and what bearing it may have on your case.
- Modifying Child Custody or Visitation – Learn about the circumstances under which a final custody agreement or order can be changed in North Carolina.
- Child Support – Whether you’re a parent seeking child support or being asked to pay, it’s important to understand your rights in a child support case. Learn more about how child support works in North Carolina and how courts determine payment amounts.
- Calculating Child Support – Calculating child support can be a difficult process. For help with navigating this situation, call a family attorney from Breeden Law Office for help.
- Child Support Contempt Proceedings – Facing a court proceeding for failure to pay child support can be daunting. Learn more about how these hearings work and how North Carolina child support attorney Jonathan Breeden can help.
- DSS Investigations – If you’re the subject of a DSS investigation, you’re likely worried about what will happen and whether you might lose your children. Learn more about why DSS might investigate a parent, possible outcomes of an investigation, and how an experienced North Carolina family attorney can help.
- Paternity Claims – Learn how paternity claims can affect child custody and child support, and how paternity claims are handled in North Carolina courts.
- Emergency Custody Orders – Learn what an emergency custody order is, the circumstances under which a parent might seek one, and the process for getting one in a North Carolina court.
- Interstate Custody – Custody issues can become complicated when parents live in different states. Learn how a North Carolina family attorney can help if you’re trying to negotiate a custody agreement across state lines.
- Relocation – When parents share custody and one wants or needs to relocate to another state, certain issues come into play. Whether you’re the parent who wants to relocate or the parent staying in North Carolina, a North Carolina family attorney can help you find the best path forward for your family.
- Military Personnel & Child Custody – Military personnel often face unique issues when it comes to child custody, particularly if they’re active service members. However, there also are unique laws that grant certain protections to military personnel.
- Mother’s Rights – To ensure that your maternal rights are upheld by the court, it’s essential that you consult a knowledgable North Carolina family lawyer so that your divorce does not damage your relationship with your child.
- Father’s Rights – If you are a father hoping to get custody of your child, you will need to review all your options with a skilled North Carolina family lawyer with Breeden Law Office.
- Grandparents’ Rights – It’s becoming more and more common for grandparents to raise their grandchildren for many reasons. Learn more about grandparents’ rights in North Carolina.
- Relatives’ Rights – Learn more about relatives’ rights when it comes to custody of children that are not your biological children.
- Stepparent Rights – Since stepparent custody rights are complicated in North Carolina, it is in your best interest to consult an experienced family attorney if you would like custody or visitation.
- Stop Child Support Payments – There are many situations in which you could ask for your child support payments to end, including your child turning 18 years old and your child enlisting in the military. There are complex legal issues surrounding ending child support payments, so it is important to consult with a lawyer before moving forward with this issue.
- Legal vs. Physical Custody – You and your ex-spouse or partner may have difficulty determining legal or physical custody of your children after a divorce. It’s important to understand the difference between legal and physical custody so that everyone involved can make the best of this difficult time.
- Foster Care Attorney – If you foster a child and want to add them as a legal member of your family, there are many legal issues you must face. During this process, it is important to stay informed on any all custody information that may be relevant to your case.
- Dependents & Tax Exemptions – When determining which parent gets to claim your child as a dependent during tax season, it’s important to have an attorney on your side who can explain the complicated issues surrounding this process.
- Child Abandonment Laws – You risk losing custody or your parental rights if you’re accused of abandoning your children. Learn more about NC child abandonment laws from our family attorney today.
- Parental Kidnapping – As a parent who shares custody, it is possible to kidnap your child if you don’t thoroughly understand your custody agreement. Reach out to a North Carolina family attorney to learn more.
- LGBTQ Legal Issues – Child custody and visitation can be complex in same-sex separations. Our North Carolina LGBTQ lawyer can answer all of your questions.
How Can I File for Child Custody?
How an Experienced Custody Lawyer Can Help
Custody laws can be complex. A family law attorney has professional training and experience that affords them the ability to do everything within their power for your case. Having a lawyer represent you during your child custody matter can help in the following ways:
- A lawyer can take the confusion out of the matter. If you want to get custody of your child, how do you go about doing that? Do you know the difference between legal and physical custody? If you don’t spend much time in the courtroom, you may not know very much about the legal process, which is why you should turn to an experienced attorney. A local custody attorney spends a great deal of time in family courts and can provide not only knowledge about your legal matter, but also detailed information about dealing with judges, clerks, and local rules.
- A lawyer can provide peace of mind. Child custody and visitation hearings can be a source of major contention for parents. Your lawyer will implement a buffer zone so that you and your child’s other parent do not have to communicate directly during the proceedings. Steering clear of the other side allows you to keep your cool while your attorney works out the details. Maintaining a lower stress level can help you enjoy the time you have with your children, who deserve to spend time with happy, loving parents.
- A lawyer can fight for your rights. The courtroom can be intimidating. If going before a judge leaves you overwhelmed, you might be more likely to settle for anything to finish the legal process as quickly as possible. This is especially true if your child’s other parent is represented by an attorney and you are not. A child custody attorney will work for you by listening carefully to your situation, considering all potential outcomes, and researching the laws and past courtroom decisions to come up with the very best solution.