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Child Custody – FAQ

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Child Custody FAQ 


What are the different types of child custody?

Child custody basically has two elements: legal custody and physical custody.

Legal custody involves who has the right to make decisions for the children and is either sole (given to one parent only) or joint (shared by both parents). A parent with sole legal custody can make all major decisions for the children unilaterally, including choices about their education, religion, and health care. Joint legal custody means that both parents have a say in all important decisions involving the children.

Physical custody relates to where the children live. Sole physical custody means that the child lives the majority of the time with one parent and may have visitation with the other parent.

Joint or shared custody means the child lives with both parents during the course of the year. Joint physical custody is not necessarily 50/50 but implies a sharing of the day-to-day responsibilities for the children.

What does the term “primary physical custody” mean?

The parent with whom the child lives the majority of the time (more than 50%) is said to have primary physical custody.

Who makes the custody decisions if we can’t agree?

In North Carolina, the court can order parents to go to mediation to settle their disagreements regarding the children, and to learn to co-parent in a manner that serves the best interest of the children. A situation where the parents cannot agree to a custody arrangement is referred to as “contested custody,” and ultimately the court can decide who has legal and physical custody of the children.

What factors do courts look at when deciding who gets custody of the children?

The most important factor the court considers when determining custody is the “best interests and welfare of the child.” In making this determination, the courts will consider many different issues, including:

  • the age and health of the child
  • the mental and physical health of the parents,
  • physical, mental, emotional, moral and religious factors
  • the child’s preference
  • Each parent’s care-taking ability
  • Each parent’s home environment
  • Each parent’s availability to the child
  • Each parent’s economic situation and potential
  • The child’s bonding with other siblings, and
  • Other factors that illustrate what is best for the child.
Are mothers more likely to be awarded custody over fathers?

Today, there is no presumption that either parent is automatically better able to take care of the children.

Once child custody is decided, can it ever be changed?

Custody can always be modified. Either parent can ask for a change in custody, but a parent must show that there has been a substantial change of circumstances materially affecting the best interests and welfare of the child. For example, a parent might file for a change of custody if the other parent is seriously ill and unable to provide adequate care to a young child due to failing health. This would be considered a substantial change of circumstance that does affect the child in a significant way, and the courts could rule for a change in custody.

What is a “non-custodial parent”?

This is the term used for the parent who does not have primary physical custody of the child, i.e., the parent with less than 50% of the time with the child.

What is visitation?

Visitation is the non-custodial parent’s time with the child. A typical visitation schedule might include every other weekend, half of all major holidays, a portion of the summer, and certain other special days such as birthdays, Mother’s Day and Father’s Day. An experienced family law lawyer can advise you as to all of the issues you might want to consider when negotiating a visitation schedule with the other parent. A well-planned visitation schedule can have a significant effect on how well the transitions go for the child and can make life much easier for both parents as well. McNeil Law Firm would be happy to assist you in negotiating your visitation schedule.

What is supervised visitation?

Supervised visitation can be ordered if the Judge is advised that harm or danger could come to a child if visitation is not monitored by a third person. Usually, a supervised visitation ruling will include where the visitation can occur, how often, and who is allowed to do the monitoring, such as a social worker or a specified relative.

Will my child be required to speak in court?

Usually having a child testify is not necessary and it rarely occurs. A child may be called as a witness in some custody cases, but it is frowned upon in all but the most extreme instances. If a child is required to testify, the parties, their attorneys and the Judge would all have to agree to allow the child to speak privately to the Judge in chambers. Usually what the child says in private to the Judge is not made known to the litigants. The Judge will mostly likely inform the child that what he or she tells the Judge is merely one consideration and that the child does not get to make the decision regarding their custodian. If an objection is made to the child speaking privately with the Judge, the only way the child’s voice may be heard is to call that child as a witness unless there are other professionals involved in the matter who can speak on the child’s behalf or who have formed an expert opinion regarding the child’s needs.

Can my children decide who they want to live with?

In North Carolina, weight may be given to a child’s preference for custody. Some case law in North Carolina suggests that it may be appropriate for a child who is ten years old or older to assist the Judge in making a determination of custody. With that in mind, it is not always wise to base decisions regarding custodial schedules on the whims of a young child or teenager.

My teen-aged son feels like he doesn’t have a voice in the visitation schedule, and no longer wants to spend weekends at his dad’s house in another town. Can I hire an attorney to represent my children? Or can he just stop going to his dad’s house?

In some cases, a Guardian Ad Litem (either an attorney or a non-attorney) can be appointed or hired to represent the interests of the minor child.</p> <p>If a custody order is in effect, both parents are obligated to follow it. If something has changed and the best interests of the child are no longer being met by the order, either parent can file a motion with the court to change the custody order. The judge will review the evidence and testimony and determine if the custody and visitation schedule should be changed to meet the needs of the child. Until the custody order changes, the child still needs to visit with the parents according to the order.

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The information contained on this site is provided as a public service for informational purposes only and is not intended to be a comprehensive statement of the law. The reader is advised to check for changes to current law and to consult with a qualified attorney on any legal issue before taking action of any kind. The information presented on this site should not be construed to be formal legal advice or to create or imply the formation of a lawyer-client relationship between the reader and this firm.

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