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Ask An Attorney: How Does Child Custody Work in NC?

November 19, 2021

Child custody is a sensitive subject – and for good reason. Decisions regarding your children can have a defining effect on their lives and of course, a lasting impact on the delicate structure of your family.

Navigating the child custody system is undoubtedly difficult, so it’s essential to have the support of a skilled attorney throughout the process. Our experienced Family Law team is prepared to guide you every step of the way. In this post, we’re sharing some answers to the questions we hear most often about the child custody process.

In this post:


How do I get custody of my child?

There are two types of custody in North Carolina – physical and legal. Physical custody pertains to what days the child will spend with each parent, and legal custody refers to who will make major decisions for the child regarding health, education, religion, extracurriculars, etc. In North Carolina, both parents have full legal and physical custodial rights unless there is an agreement or court order in place that states otherwise. There are a few different ways to approach a custody agreement:

Agreement Between Parents

The first option is to come to an agreement with your child’s other parent for sharing both legal and joint custody. This can be accomplished by settling on the terms yourselves and then engaging an attorney (or mediator, if they are willing) to draft an agreement that includes all of the appropriate legal language. This agreement must be notarized. 

While it can be tempting to take a do-it-yourself approach with a parenting agreement template found online, we don’t recommend going down this path. These cookie cutter agreements are problematic because they don’t account for your state’s specific laws and often fail to communicate the points that you think you’re agreeing to. We’ve counseled many clients who have tried these templates, and the biggest takeaway is that it’s better to pay an attorney a few hundred dollars on the front end than to spend thousands correcting mistakes after the fact.

Mediation

If you’re unable to reach an agreement but don’t want to file a lawsuit, an alternative is to attend mediation with a paid mediator. Here at W&H, we use court-certified family law mediators who, as family law attorneys, are familiar with the laws and judges in your county. 

Since the courts require mediation before going to a judge anyway, it’s worth the time and money to work with a paid mediator to come to an agreement. Most cases that go into this type of mediation are resolved without a lawsuit. 

Court Order

If you can’t come to an agreement with your child’s other parent, you can turn to the courts to determine custody instead. To get this process started, you’ll need to file a lawsuit in the appropriate county and state.

Once one parent files for custody, the court will require both parties to attend mediation before they can appear before a judge. The court will provide mediation for free, and if an agreement is made, the mediator will write up the agreement for both parents to sign before having it entered by the judge. 

It’s worth noting that going to court is expensive and stressful for everyone involved, so we recommend avoiding litigation if at all possible. 

What’s the difference between sole and joint custody?

When you’re working through a custody agreement – whether through direct communication, mediation, or court order – you’ll need to consider sole versus joint custody. 

Sole custody means that one parent has the exclusive right to make decisions for the child (legal custody) or the exclusive right to have the child live in his/her home (physical custody).

Joint custody means that the parties share in the decision-making process for the child (legal custody) or that they share the privilege of having the child live in their home. Depending on what the parents agree to, joint physical custody can take many forms. It could be a 50/50 split in the time that each parent spends with the child, or it could be that one parent retains more physical custody than the other. In an uneven split, it’s important to consider that the parent with more time with the child (over 123 overnights) will be deemed to have primary custody, and the other parent will be deemed to have secondary custody or visitation. 

Can child custody be determined during pregnancy?

Child custody can be determined at any time once paternity is proven. Paternity is proven through a DNA test, which can be performed during pregnancy assuming that the mother and her physician are comfortable doing the test based on its effect on the unborn child. If not performed during pregnancy, a test can be performed after birth to determine paternity. 

In North Carolina, the child of married parents is presumed to be a child of the marriage. Outside of that – or if the husband questions paternity – a paternity test must be done before a custody agreement can be recognized by the court. 

Can my child determine who they want to live with? What if they’re not happy with the decision?

A child can’t decide where they want to live on their own. However, once they reach an age where they can effectively voice an opinion about the living situation, a judge will take the child’s preferences into consideration. In some cases, this could mean a child as young as nine years old is able to speak for his- or herself, but in other cases a Guardian ad Litem (GAL) may be appointed by the court to discover and communicate the child’s wishes. A child could also have their own attorney to serve as their voice in court.

Although a child’s opinion can factor into a judge’s custody decision, adults are generally the ones who are making decisions on behalf of the child. A custody decision can be appealed if the child (or any party) is unhappy, but it’s better to work with the child throughout the process to structure a custody agreement that suits everyone’s needs.

How do you change a child custody agreement?

If the arrangement is through an agreement between the parents, it can be changed any time as long as the parents agree on the change. 

If the arrangement was determined by a judge, the parent requesting the change would need to prove that there was a substantial change in circumstances. 

How long does a custody case usually take?

The timeline on a custody case can vary widely based on the route that the parents choose to take. 

If the parents come to an agreement themselves, an attorney can draft a custody agreement in about a week or two, depending on their schedule and availability. 

If both parties decide to go to a paid mediator, an appointment can usually be made within a month or so. If the parents agree on custody terms through the mediator, the mediator can often have the agreement finalized the same day of the appointment. 

If one parent decides to file a case in court, the process can take many months or well over a year. The courts are overloaded with custody cases, and court dates are usually set a few months from the time that the initial case is filed. And even when you receive a court date, your case could easily be pushed back if the docket is too full to hear all of the cases assigned on a given day. Before seeing a judge, you’ll also need to account for the time spent in the required, court-mandated mediation period. 

Conclusion

At the end of the day, custody agreements should be approached with care, compassion, and understanding from both sides – regardless of the way that you choose to approach the process. We understand that it’s not always easy to create this environment without the help of a professional, so we strongly recommend seeking out the guidance of our Family Law attorneys as you consider what’s going to be best for your child in the long term.