Charlotte Child Custody Lawyer & Visitation Law Firm

Charlotte Child Custody Attorney

The magic words relating to child custody in North Carolina are “in the best interests of the minor child(ren).”

Michael Romano, a Board Certified Family Law Specialist with over 24 years of experience and one of the managing partners of Plumides, Romano and Johnson, PC, is dedicated to preserving the best interests and safety of all children involved in a divorce situation and will not support the use of the child(ren) as a “weapon” to gain an advantage in divorce litigation. In North Carolina, child custody is governed by N.C.G.S. § 50-13.1 and N.C.G.S. § 50-13.2. In a custody action, once a judge hears all the evidence presented, a judge must decide the custodial arrangements for the child(ren) according to what is in the best interests of the minor child(ren). In North Carolina, there is no presumption as to which parent is a better parent. When you think of “child custody,” there are two types of “custody” – there is legal custody and there is physical custody.

What is 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 generally three (3) different types of legal custody. A court can grant parents joint legal custody, sole legal custody or a combination of the two in which will grant one parent decision making authority over some issues and the other parent decision making authority over other issues. This is oftentimes referred to as “parallel parenting.”

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). Parallel parenting grants one parent decision making authority over some issues and the other parent decision making authority over other issues.

what is PHYSICAL CUSTODY

There are generally three (3) types of physical custody – there is 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 and visit(s) with the other parent who in turn exercises “secondary physical custody” or visitation.

“Joint physical custody” is a true sharing of time with the child(ren) whereby each party will have equal, or close to 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 thing as sole and joint or some other designation.

In North Carolina, once a custody action has been filed with the courts, custody mediation is required. Shortly after the filing and service of child custody action (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 to complete parent education and mediation orientation. Once mediation orientation is completed, the parties must attend a one-time “court sponsored” mediation session. This “court sponsored” mediation session is different than “private mediation.” For “court sponsored” mediation, only the parties appear with the court appointed mediator. If the parties have attorneys, their respective attorneys will not appear with them at “court sponsored” mediation. “Private mediation” is where the parties and/or attorneys will choose a third-party mediator to conduct mediation, and in this setting, the parties will appear at mediation with their respective attorneys.

“Court sponsored” mediation will last as long as necessary provided the mediator feels that the parties are making progress in resolving the custody/visitation dispute. If the parties are able to agree on a solution at court sponsored mediation, the court appointed mediator will draft the agreement for the parties to sign and that agreement will subsequently be entered as an Order of the Court. If the parties are unable to reach an agreement or if one or both of the parties or the mediator feels that mediation is no longer a solution, the case will be closed and a trial will be scheduled to settle the custody/visitation issues. The Court employs the mediator and there is no charge for the court sponsored custody mediation program. Your lawyer is not directly involved in the court sponsored mediation program and cannot attend any meetings with the mediator; however, your lawyer will be advised of the progress of the mediation and will be prepared to assist you with advice and support during the court sponsored mediation program. Court sponsored 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.

CHILD CUSTODY FAQs

Will my child have to testify in court?

In North Carolina, it is entirely in the judge’s discretion as to whether the testimony of a child will be heard. If a judge determines that a child is of appropriate age and maturity to provide the court with helpful information, the court may order the child to testify. The judge may have the ability to require the testimony of the child to be given in private in his/her chambers. The judge may require the attorneys for the parties to be present during the questioning or may require that the attorneys not be present during the questioning. Typically, judges will do everything possible to prevent the child from having to testify in any capacity in an effort to avoid traumatizing a young child. As the child grows older and/or reaches the age of majority (18), the court may require him or her to testify in an open courtroom. These issues should be discussed with your attorney as you prepare for court and your concerns should be addressed thoroughly and completely with your attorney

When can a claim for child custody be filed? Once a child custody order has been entered, can it be modified?

A child custody claim may be filed by any party at any time so long as the parties reside separate and apart. Custody is always modifiable by the courts. The courts have the inherent responsibility to protect the best interests of the minor children of this state. As a result, the Court is always willing to hear motions to modify any type of custody order that has been entered if certain changed circumstances can be shown. A party moving the Court to modify a child custody determination has the burden of showing that since the entry of the last order, there has been a substantial and material change of circumstances affecting the best interests and welfare of the child(ren). Only if this burden has been met, may a court modify the previous order setting forth custody.

Do grandparents have rights to custody and/or visitation in North Carolina?

Grandparents generally have standing to sue for custody of their grandchildren if they allege parental unfitness or child neglect, even if there is no ongoing custody dispute. However, even though grandparents may have standing to seek custody, they may not have standing to seek visitation under similar circumstances unless there is an ongoing custody dispute. Under current North Carolina law, grandparents may be granted visitation rights provided there is an ongoing custody dispute.

What does visitation mean in North Carolina?

In general, visitation falls under the “custody” umbrella. Oftentimes, courts would enter custody orders that granted “custody” of a minor child to one party and “visitation” of the minor child to the other party. However, courts are moving in the direction of using the terms of primary and secondary custody. Primary custody is the term used to describe where the child(ren) will spend most of his/her/their time whereas secondary custody is used to describe where the child(ren) will spend less time. In many cases, both parties are entitled to exercise visitation with the minor child. You must keep in mind that each case is different, and the court is empowered to order whatever type of visitation it believes is in the best interests of the child(ren).

What is joint custody? What is sole custody?

There is no set definition in North Carolina as to “joint custody” or “sole custody.” Many people believe that joint custody represents a true sharing of time and expenses for their children. Joint custody may sometimes be further classified into primary and secondary custody or physical and legal custody. Sole custody is often thought of as a situation where one party has the primary physical and legal control over a child or children and the other party simply has visitation rights. Again, there is no set definition in North Carolina statutory or case law for joint or sole custody. Each case is different from the other and a court will make arrangements as it sees fit and which serve the best interests of the minor children involved.

What is a custody evaluation and when should one be conducted?

A custody evaluation is when an objective third party is paid to assess each of the parents in order to assist the court in making a determination as to custody. Either party may ask the court to have a custody evaluation performed. As a matter of logistics, it is preferable to have a custody evaluation requested early on in the legal process so as not to cause unnecessary delay. Custody evaluations may take anywhere from a week to a month, depending on how in-depth the evaluation is. In addition, the evaluation may involve interviews with the parties as well as collateral witnesses and psychological testing of both parents and the children.

What impact could dating have on child custody?

There could be ramifications from dating when you are involved in a child custody case. For example, if the person you are dating is considered by the court as someone who is not in the best interests of the children whose custody is in dispute, it could cause a judge to award custody to the other parent. A Court may determine that a new boyfriend or girlfriend is not a good influence on the child(ren) and should not be allowed around them. Courts are not in the habit of making moralistic rulings but a Court may determine whether a relationship is in the best interests of the child(ren).

Do the North Carolina Courts favor one parent over the other in custody cases?

No. The tendency of the Court to favor the mother over the father has been formally abolished pursuant to N.C.G.S. 50-13.2(a). Therefore, a Court’s primary concern is make a determination as to who will “in the opinion of the Judge, best promote the interests and welfare of the child.” N.C.G.S. 50-13.2(a).

Do children get to decide who they will live with?

A court may take the wishes of the child into account when making a child custody determination, but the Court must consider a number of different factors with the wishes of the child being just one of several factors.

Can I change my minor child's last name without permission from the other parent?

Unless the other parent’s parental rights have been terminated, you cannot change a minor child’s last name without the other parent’s consent.

Determining the Best Interests of the Child

The issue of child custody is not one that is taken lightly, as many children are in need of a stable and loving home environment.

During FY 2024, North Carolina counties saw the percentage of children in DSS custody vary between 0.1% and 3.6% of their child population. North Carolina received 107,536 child abuse and neglect referrals during 2022 and screened 62,304 cases for CPS responses. In 2022, foster care children across the United States averaged 8 years old, while over fifty percent of them were younger than 10 years old.

The statistics offer an understanding of current patterns in child custody management and child welfare conditions. When the courts determine child custody, they prioritize the best interests of the child. Factors that influence this include:

The living situation of each parent
Each parent’s relationship with the child
The ability of each parent to provide a stable environment
History of behaviors that put the child’s well-being at risk, such as domestic violence, addiction, or criminal activity
The child’s preferences, especially if they are older

Under North Carolina law, neither mothers nor fathers receive automatic custody preference. The court examines all relevant factors to establish a custody plan that fosters the child’s best interests including but not limited to physical health and emotional development, along with their overall growth.

Filing for Custody in Charlotte, NC

Legal matters involving child custody in Charlotte occur at the Mecklenburg County District Court, located at 832 E Fourth St, Charlotte, NC 28202. In order to be eligible to file for child custody in North Carolina, a child must have resided in North Carolina for at least six (6) months before filing a custody action. The legal process includes several distinct steps as is outlined in N.C.G.S. § 50-13.5:

Filing a complaint for custody. Through this process, you start your custody case and describe your desired custody plan.
Custody mediation. Mecklenburg County requires parents to engage in court sponsored mediation before a judge evaluates their case. Court sponsored mediation allows parties to achieve a mutual settlement, which avoids the emotional strain and financial burden associated with litigation.
Court hearing. A judge will review evidence to establish a custody order for the child’s benefit when parties fail to reach an agreement.

Modifying a Child Custody Order

The circumstances surrounding custody orders can evolve once custody orders have been executed. These changes may warrant a child custody modification. To request a modification to a custody order in North Carolina, pursuant to N.C.G.S. § 50-13.7, a parent needs to show a “substantial and material change in circumstances” that impacts the child’s well-being. Situations that may warrant a modification include:

Parental relocation. If one parent moves out of the state, especially due to necessary career changes, this could call for a modification of parenting time and transportation.
One parent remarries. If one parent remarries or brings in another partner (especially one to cohabitate with), this can affect the child’s well-being positively or negatively. If this creates irreconcilable changes, a modification may be necessary.
Child’s needs change. Sometimes, the child has different needs, such as extended medical attention or developing educational or emotional needs. In cases like these, a child may benefit from going to a different school or being closer to special medical care, and a change in custody arrangements would help accommodate these needs.
Parental misconduct. If one parent begins to neglect the child or shows signs of unsafe behavior, such as domestic violence or substance abuse, this would warrant a change in custody arrangements.
Parental availability changes. A change may be necessary if one parent has scheduling conflicts, such as a change in their work schedule that would make the current custodial arrangement difficult or impossible.
Behavior issues. If the child is exhibiting behavioral (or school performance) issues that are reasonably believed to improve through spending more time with the other parent, a modification can be requested.

In a modification proceeding, Judges will continue to focus on what is in the best interests of the minor child and what benefits the child most as they make decisions about changing existing custody agreements.

Enforcing a Child Custody Order

Either parent retains the right to enforce a custody order through judicial proceedings when one parent breaches the custody arrangement pursuant to N.C.G.S. § 5A-11 and/or N.C.G.S. § 5A-21. To enforce a custody order, a party would be required to file a Motion for Contempt. Common examples of custody order violations are one parent preventing scheduled visits, returning children late from visits, stopping communication between a parent and a child, etc. The remedies for contempt may include the court imposing fines, ordering makeup parenting time, the payment of legal fees, etc.

FAQs

Q: Do I Need a Lawyer for Child Custody in NC?

A: Legal representation isn’t mandatory in North Carolina child custody cases, but your chances of success are higher with an attorney by your side. A custody lawyer can assist you with court procedures and evidence collection while defending your parental rights. Legal representation becomes crucial during contested cases and high-conflict situations, as well as when you need to modify existing custody orders.

Q: Is North Carolina a 50/50 State for Child Custody?

A: Although 50/50 custody is not always granted in North Carolina, courts frequently support shared parenting when it is in the best interests of the child. In order to develop a plan that promotes continued ties with both parents, the court considers the unique circumstances of each family. If both parents are able to communicate well and create conditions that are stable and nurturing, they may be given equal time.

Q: How is Custody Decided in NC?

A: North Carolina bases its custody decisions on what is in the best interests of the minor child. In custody cases, judges evaluate multiple factors, such as parental living arrangements, the child’s requirements, parental suitability assessments, and parent-child relationship quality. The aim is to establish a custody plan that advances the child’s well-being and stable development without considering parental gender.

Q: Can a Child Choose Which Parent to Live With in NC?

A: The North Carolina court system takes into account a child’s preference when the child demonstrates sufficient maturity to provide a logical decision; however, it is not the deciding factor. There is no specific age as to when The judge will consider the child’s input together with additional factors concerning the child’s safety and stability and the child’s best interests.

Contact Plumides, Romano & Johnson, PC, Today

If you are seeking to create, modify, or enforce a child custody agreement, Plumides, Romano & Johnson, PC, is on your side. Contact us today to begin fighting for your rights and the well-being of your child.