Child Custody - Plumides, Romano & Johnson, pc

The magic words relating to custody in North Carolina are “in the best interests of the minor child(ren).” Plumides, Romano and Johnson, PC is dedicated to preserving the best interests and safety of all children involved in a divorce situation. The firm will not support the use of the child(ren) as a “weapon” to gain an advantage in divorce litigation. 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 typically receive substantial visitation privileges with the child(ren). There is no presumptive visitation schedule, and the court welcomes visitation settlements agreed to or negotiated by the parties.

There are two types of “custody” – there is legal custody and there is physical 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.

There are generally three 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, custody mediation is required in all cases involving custody issues. Shortly after the filing and service of lawsuit for child custody (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. Once mediation orientation is completed, the parties must attend a one-time “court ordered” mediation session. This “court ordered” mediation session is different than “private mediation.” For “court ordered 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 ordered” 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.

The parties remain in “court ordered” mediation as long as the mediator feels that they are making progress in resolving the custody/visitation dispute. If the parties are able to agree on a solution at mediation, the court appointed 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.

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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

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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.

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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.

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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).

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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.

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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).

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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).

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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.