Overview of Child Custody and Visitation in North Carolina
In general, you're not obligated to get custody and visitation orders for your child. However, if you don't, the other parent could relocate your child or keep them longer than agreed upon. Having a judge grant permanent orders protects you and your family.
In North Carolina, custody and visitation orders can be decided in two main ways: jointly by parents with approval from a judge (called settling), or by the judge alone, based on evidence from a trial.
In both instances, judges must form their decisions on "the best interest of the child." This means they have some flexibility as they consider the health, safety and welfare of each child involved in a case.
Be aware that every case is unique and each county may handle issues a bit differently.
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Types of custody
There are two types of child custody: legal and physical.
Legal custody refers to the right to make educational, medical and religious decisions for a child. Your family may end up with sole legal custody or joint legal custody.
When parents fail to settle, courts usually assign sole legal custody.
Physical custody refers to the time spent with a child. Again, your family could end up with sole or joint.
In sole physical custody, one parent spends all or most of the time with the child. In joint physical custody, each parent spends significant time with the child. In both situations, whoever gets the most time is known as the primary parent. If the other parent has any time with the child, they're called the secondary parent.
Courts prefer to assign joint physical custody even when parents fail to settle, unless it's not in the child's best interests.
Types of cases
Before the court can assign custody, one parent must open a case and file a complaint. Even if you're settling, one parent has to open a case so the court can approve and enforce your agreement.
You may open a divorce, legal separation, annulment or stand-alone custody case (for unmarried parents). Parents must live apart for 12 months before filing for divorce, even for cases involving domestic violence.
Benefits of settling
Courts and custody professionals encourage parents to settle whenever possible. Settling allows parents to make custody decisions together, saves them time and money, and keeps the court from becoming overburdened.
To encourage settling, North Carolina requires parents to attend free, court-provided mediation before going to trial. Parents meet with a mediator for two hours to try to reach an agreement. If they manage to compromise on all or some custody issues, the mediator submits their parenting agreement to the court.
You may also turn to alternative dispute resolution methods like private mediation, collaborative law or early neutral evaluation to help you reach a settlement.
Length of custody proceedings
The more parents disagree, the longer the custody process takes.
Once parents reach an agreement, they can file a settlement. (Divorcing parents can't settle until at least 30 days after service.)
On the other hand, cases that go to trial can last anywhere from 12 to 18 months.
Costs to expect
The cost of litigating custody varies, but complex and contentious cases will be the most expensive.
Depending on location and expertise, attorney rates can range from $100 to $500 per hour. If you go to trial, expect to pay thousands of dollars in attorney fees. Even a straightforward trial can cost you $5,000 or more.
Some firms offer pro bono (free) legal aid to low-income parents. You can also represent yourself (details below) to save money, but experts don't recommend this.
Settling through alternative dispute resolution methods usually costs less than litigating because they proceed faster. The sooner you settle, the more you save.
Self-representing parties (pro se parties, in legal speak) must follow the same rules and procedures as lawyers. Failure to file the proper paperwork or adhere to court standards could negatively impact your case, and you must be aware that no one at the court can provide legal advice or help you fill out forms.
If you decide to represent yourself, see Legal Aid of North Carolina's pro se packet. You can also attend their Child Custody and Visitation Clinic or North Carolina Central University's Family Law Clinic.
Keep in mind the option to hire an attorney for specific tasks, such as looking over your paperwork.
Resolving custody via collaborative law is unique in that you must hire an attorney.
Custody hearings and trials are open to the public. However, judges may limit access for security reasons or for high-profile cases.
Court files, in general, are public records. However, certain family law documents remain confidential, such as child custody evaluation reports. Only a handful of people, including the parties and their lawyers, can access these.
You can request confidentiality for other documents, but courts don't grant these requests easily. On the other hand, they do usually comply with requests to conceal contact information for domestic violence victims.
Children in court
In most instances, your child should not attend custody hearings or trials.
If your child wants to express their wishes regarding custody, the judge will generally interview them behind closed doors.
If your child is mature enough, the judge might allow them to testify in court, but usually only if the child wants to comment on abuse allegations.
North Carolina custody laws
For more details on custody and visitation, see Chapter 50 of the North Carolina General Statutes.
The process of deciding custody requires serious organization. You may need to create a parenting plan, draft multiple visitation schedules, track your time with your child, calculate expenses and beyond.
The Custody X Change app enables you to do all of that in one place.
Take advantage of our technology to stay on top of all the moving parts of your case.