Divorce is never easy. And the situation can become more difficult when the couple has children. Determining custody can be emotional for all parties involved. Each spouse could have differing opinions on who gets custody of the children. However, in North Carolina, the magic words relating to custody are “in the best interests of the minor child(ren).” Family Law Attorneys are dedicated to preserving the best interests and safety of all children involved in a divorce situation. Any reputable firm will not support the use of the child(ren) as a “weapon” to gain an advantage in divorce litigation.
In North Carolina, the first step for child custody issues is mediation. Any party claiming child custody rights may file a court action. However, rather than hearing arguments, North Carolina courts will first schedule the custody issue for mediation (unless there is a reason to waive it). Causes for a waiver may include:
- Drug or alcohol abuse allegations;
- Domestic violence; or
- Undue hardship on either party.
Shortly after the filing and service of the lawsuit (generally within 6-8 weeks), an order will be issued by the court directing the parties to participate in parent education and mediation orientation. Each party will be given a certain amount of time in which they need to complete parent education and mediation orientation. The parties must attend a one-time mediation orientation session and at least one mediation session. The parties remain in mediation as long as they and the mediator feel that they are make progress in resolving the custody/visitation dispute. If the parties are able to agree on a solution at mediation, the mediator will draft the agreement for the parties to sign and the agreement will be entered as an Order of the Court. If the parties are unable to reach an agreement and if one of the parties or the mediator feels that mediation is no longer a solution, the case will be closed in mediation and a trial will be scheduled to settle the custody/visitation issues.
The Court employs the mediator and there is no charge for the custody mediation program. Your lawyer is not directly involved in the mediation program and cannot attend any meetings with the mediator, however, he or she will be advised of the progress of the mediation and will be prepared to assist you with advice and support during the mediation program. Custody Mediation is successful in a high percentage of the cases in Mecklenburg County and offers you an opportunity to control the outcome of your own custody dispute.
If the parties can reach an agreement through mandatory mediation, the court will usually adopt it as an order. If mediation doesn’t result in an agreement, courts will make the determination themselves. After hearing all the evidence, a judge must decide the custodial arrangements for the child(ren). In North Carolina, there is no presumption as to which parent is a better parent. Except in unusual circumstances, the non-custodial spouse will receive substantial visitation privileges with the child(ren). A typical visitation or standard visitation schedule for a non-custodial parent, when both parties continue to live in the same geographical area, is alternate weekends, one-half of the school holidays and a few weeks during the summer. There is no presumptive visitation schedule, and the court welcomes visitation settlements agreed to or negotiated by the parties.
Types of Custody:
Legal Custody – Legal Custody determines which parent will have the authority to make major decisions affecting the welfare of the minor child(ren). Major decisions typically involve issues related to health, education and religion. There are different types of legal custody. A court can grant parents joint legal custody, sole legal custody or a combination of the two, which will grant one parent “final decision-making authority.”
- Joint legal custody gives each parent equal right to participate in making major decisions on behalf of the minor child(ren).
- Sole legal custody gives one parent the sole authority to make major decisions on behalf of the minor child(ren).
A court may also grant one parent the right “to make final decisions” which means that each parent will have to discuss with the other all major decisions affecting the welfare of the minor child(ren) in an attempt to come up with a mutual decision but if the parties are unable to mutually agree, then the parent who has “final decision-making authority” will make the final decision.
Physical Custody – There are generally three types of physical custody – primary physical custody, secondary physical custody and joint physical custody.
- Primary physical custody simply means that the minor child(ren) physically resides with one parent
- Secondary physical custody or visitation means the child(ren) visits with the other parent, but retains primary residence with the other parent.
- Joint physical custody is a true sharing of time with the child(ren) whereby each party will have equal time with the child(ren).
Keep in mind that there is different terminology for the same thing so while we refer to physical custody as primary, secondary and joint, others may refer to the same