As most would expect, Child Custody is often the most contested issue in many Divorce cases and one of the most contentious matters in Family Law. The following is a general outline of how Child Custody Matters are resolved in North Carolina.
Option 1: Separation Agreement (as Part of Divorce Process)
Separation Agreements are drafted to resolve the legal issues that accompany Divorce. These issues include Alimony, Post-Separation Support, Division of Marital Property, Child Support and Child Custody. In a Separation Agreement, the parties are permitted to structure the Custody/Visitation Schedule for them and their children in any way that will work best for the parties and their children. Typically parties reach an agreement where one parent takes primary physical custody of their children while the other parent has every other weekend with their children. However, the parties can reach generally any agreement they choose and incorporate it into a Separation Agreement. Parties who execute Separation Agreements incident to a Divorce are not required to file copies of Separation Agreements with the Court presiding over their Divorce case, although parties may file their Separation Agreements with the Court.
Option 2: Child Custody Consent Order (Can be Used Outside Divorce Process)
Child Custody Consent Orders are similar to Child Custody Agreement Clauses that are incorporated into many Separation Agreements that are drafted for divorces. The parties have a wide range of discretion to enter into arrangements that work best for the parties. However, Child Custody Consent Orders must be filed with the appropriate County District Court that has jurisdiction over the particular Child Custody matter. Finally a District Court Judge enters Child Custody Consent Orders into effect. Child Custody Consent Orders can be used incident to Divorce and to resolve Child Custody matters not incident to Divorce such as between unmarried parents of minors.
Option 3: Child Custody Litigation
If parties are unable to resolve their Child Custody/Visitation disputes, either party has the option to file a Civil Suit for Child Custody in the appropriate County District Court. The first step of this process is to draft and file a Civil Complaint, Summons and other required documents for Child Custody in the appropriate County District Court and serve process on the other party in accordance with the North Carolina Rules of Civil Procedure (NCRCP). The party served will then have an opportunity to file an Answer with the District Court and serve the answer on the plaintiff in accordance with the NCRCP. In Mecklenburg County, the case will then be set for mandatory mediation at a date scheduled by the Court. At mediation, the parties have the opportunity to attempt to formulate an agreement through compromise and the presence of a third party NC Certified Child Custody mediator. If an agreement by the parties is reached, an agreement will be drafted, typically by the mediator and entered into effect by the Court. If the parties do not reach an agreement the matter will proceed to trial at a time scheduled by the Court. The trial will be a bench trial (meaning there is no jury, just a Judge) and each party will have an opportunity to make their case as to what arrangement they believe would be in the best interest of their children.
Physical Custody: Physical Custody is generally divided 50/50 between parties meaning that each parent will be entitled to have actual physical custody of their children. In this matter a schedule will be created which typically says what days of each week each parent has physical custody and overnight custody of their children, holiday schedules, summer schedules, etc. The default 50/50 arrangement can be overcome by sufficient evidence introduced by one party against the other to show that a deviation from a 50/50 arrangement would be in the Best Interests of the Children. These matters are at the discretion of the Courts.
Legal Custody: Legal Custody is also generally divided 50/50 between each parent, meaning each parent has equal authority to make Legal Custody decisions. Legal Custody is the authority of the parents to make decisions for their children regarding medical, educational, religious, and other issues. Like in Physical Custody determinations, the default 50/50 arrangement can be overcome by sufficient evidence introduced by one party against the other to show that a deviation from a 50/50 arrangement would be in the Best Interests of the Children.
The presiding Judge will issue a Motion of Judgment decreeing an arrangement and physical custody schedule if applicable arranging Physical and Legal Custody for the parties. The parties will be bound to the Judgment. However, in certain cases parties may be able to bring Child Custody back into District Court if warranted and one of the parties believes an alternative arrangement would be best for the children such as in emergency situations.
This blog is not to be construed as legal advice. We strongly encourage parties with Child Custody issues to seek the advice of a licensed Family Law Attorney. To schedule a consultation today, contact Biazzo & Panchenko Law, PLLC.