“Child custody” is composed of both “legal custody” and “physical custody.” “Legal custody” is generally defined as decision-making authority and entails, among other things, the right to make decisions affecting the welfare of a minor child, such as school enrollment and medical treatment. “Physical custody” refers to the day-to-day caretaking responsibilities for, and supervision of, a minor child. Within these two categories of child custody, there are a plethora of arrangements that can be agreed upon or ordered in any child custody case. For example, parents can share joint legal custody or one parent may have sole legal custody. With respect to physical custody, parents may have equal physical custody or one parent may be the primary physical custodian with the other having secondary custody or visitation. There are various ways a custodial arrangement can be structured, and the one chosen or ordered for your child and family should fit your child’s particular needs and importantly, promote his or her best interests.
Child custody disputes can be resolved by agreement or by court order. In the event of separation or divorce, parents have co-equal rights to the physical custody of their minor child; however, until there is a written agreement resolving custody and clearly articulating each parent’s rights, the custodial schedule is subject to change at the whim of the other parent. Thus, it is important to consult promptly with a qualified family law attorney about obtaining a formalized custody agreement for your child.
Parents going through a divorce often choose to establish their custodial rights, privileges, and obligations in a Separation and Property Settlement Agreement. If parents are unable to reach an agreement regarding the best custodial arrangement for their minor child or children, either parent can file a lawsuit seeking child custody and/or visitation rights. In North Carolina, absent extenuating circumstances, custody litigants must attend mandatory mediation. In mediation, the parties meet with a neutral mediator to develop a mutually agreeable custodial arrangement for their child or children. If the parties reach an agreement through mediation, they execute a Parenting Agreement which, when signed by the judge, becomes a Court Order. If the parties do not reach an agreement at mediation, the custody action will proceed to the next steps of litigation; and ultimately, if the parties cannot settle the case before trial, a district court judge will determine the custodial arrangements for the minor child.
District court judges, not juries, determine custody disputes in North Carolina. The judge’s goal is to set a custody schedule that promotes the “best interests” of the minor child. Factors considered by the Court will be multiple and various, and generally include circumstances surrounding the minor child’s physical, mental, emotional, moral, and spiritual well-being. There is no statutory or legal preference toward the mother or father of the child. District court judges have broad discretion in custody actions and appellate courts give the district court decisions great deference on appeal. Therefore, it is important that you hire a qualified and zealous legal advocate to represent you in your custody action from the very start of your custody dispute.
A court order for custody may be modified upon a showing that there has occurred a substantial change in circumstances affecting the welfare of the minor child and warranting a modification in custody. Under certain circumstances, a person who is not the biological parent of a minor child can petition the court for custody or intervene within a pending custody action and be awarded custody or visitation of the minor child. With respect to grandparents, a grandparent can generally intervene in a pending custody action if that grandparent can establish that he or she has a “substantial relationship” with the minor child and spending custodial time with that grandparent would be in the child’s best interests. Third parties, including grandparents, may be awarded custody of a minor child under more narrow circumstances such as when a biological parent has been found to be unfit or has acted inconsistently with his or her constitutionally-protected rights as a parent.
You may be eligible to request the court to order the other party to pay your attorney’s fees incurred in a child custody action. A court’s award of attorneys’ fees is discretionary and not mandatory, so you should consult with a qualified family law attorney to determine your eligibility and likelihood of success on an attorneys’ fees motion.
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