Child Custody might be the most painstaking issue during divorce proceedings.
Both parents will have their ideas on who will serve the best interest of their children. Rare is the case when both parents can agree on living arrangements and visitation.
The real tragedy of the matter is the children. A child may have to go through depositions, hearings, and testimony from both sides. It will always appear the parents are fighting over the child, which can take a toll on a child’s psyche.
Whether it’s in the courtroom or mediation, a parent will need a seasoned family law attorney at their side for child custody hearings. The right attorney will take care of your children’s best interests in family court.
When A Separation Involves Children
If you and your partner are separating, you have thought about how your finances and property will be affected. If you have children together, you will have questions about how the separation will affect your kids. Will you get to see your kids? How often, and for how long? Who will determine matters affecting your children’s everyday lives? School, childcare, healthcare? These decisions have to be made when you’re ending a relationship and children are involved. Remington & Dixon are experienced Charlotte family law attorneys prepared to guide you through this difficult time.
Who Gets Child Custody in Divorce?
A judge will always rule in the best interest of the child in a custody case. When making a decision, a judge will consider the following factors for parents in a ruling:
- Physical Fitness
- Mental Capacity
- Historical Caretaking
- Employment Requirements
- Domestic Incident History
The Mother Does NOT always Get Custody in North Carolina
The rumor you’ve heard at the watercooler is not valid. North Carolina courts will not make any presumption between mother and father in a child custody case.
Instead, the court will look at the previously mentioned factors for each parent when deciding custody. As to what kind of custody gets awarded, that comes down to another set of factors.
Physical vs. Legal: How Child Custody Works
North Carolina will file child custody into two categories: physical and legal custody.
- Physical: The debate over where the children will live post-divorce is a physical custody issue. In similar cases, either one parent will have primary custody or the parents will share joint custody. Sole custody is awarded in cases where one parent presents some danger to the child.
- Primary vs. Joint Physical Custody: In the case of primary custody, one parent will receive primary care. That’s where the child will spend the majority of the time. The parent with non-primary custody will work out a visitation schedule with their partner. In joint physical custody, the child will spend equal, or close to equal, time at both parents’ home. A custodial arrangement is decided upon those previously mentioned factors by a judge.
- Legal: All decisions concerning education, medical care, and religion fall under legal custody. Parents can hold joint legal custody if those decisions are agreed to. If not, mediation is typically the best route for figuring out legal custody disputes.
You should understand two legal terms: physical custody and legal custody. Both are central to child custody determinations. Consider this your crash course. A parent who has physical custody of their children lives with the children, part or all of the time. A parent who has legal custody of their children makes important decisions for their children. Decisions about your children’s school, childcare provider, health care, and religion fall under legal custody. The court can give physical custody to one parent or the other parent. The same goes for legal custody. Both forms of custody can also be shared between parents.
Where Do I File for Child Custody?
To file for child custody, you’ll need to see the Clerk of Court in the county of your residence. Depending on where you reside, you would need to visit the Civil Division office in any of these listed locations:
- Charlotte – Mecklenburg County Clerk of Court
- Concord – Cabarrus County, Concord Clerk of Court
- Monroe – Union County Civil Court
It would behoove you to retain a child custody lawyer to file a custody hearing request for you. Remember, you can submit a child custody request when you and your partner are legally separated.
You do NOT have to be legally divorced in North Carolina to start the child custody process.
How Is Custody Determined?
Custody issues are determined by the law. That means a judge will decide, unless parents make an agreement of their own. The court takes many factors into account when it comes to child custody agreements. In general, the “best interests of the child” is the guideline the court must follow when it decides these matters. It can be common for a court to award decision-making authority on certain aspects of the children’s life to one parent; granting the right to make other decisions for the children to the other.
Child Custody Mediation
North Carolina makes both parties go through court-provided mediation before a child custody case goes to court. Mediation itself is a process where an independent third-party, works with both sides to find middle ground on an issue. The mediator’s job is to try and find civil, a middle ground between two parties.
The mediator’s job isn’t to provide legal advice, that’s why it’s prudent to have a Charlotte NC family law attorney advise you prior to or at these hearings. If mediation is successful, the mediator will draft up a parenting agreement with the terms of the custody agreement.
Remember, do NOT sign this agreement unless you have a family law attorney review it first.
Once the two sides agree to a custody plan, it will go to court and will be subject to enforcement, contempt, and modification.
Modifying Child Support in North Carolina
A child custody order is never final. As your kids grow, their obligations evolve, and their interests change.
Modifying a child custody order requires the following things:
- A change in circumstances for the parent or the child
- The change occurred after the original custody agreement
- Is the modification in the best interest of the child?
If the request meets all three factors, a judge can make necessary changes for the custody agreement. Custody modifications can occur at any time post-divorce.
Child Custody Agreements: Why Make an Agreement?
If you’re separating from your child’s other parent, you might not want anything to do with that person. It is important that separating parents understand that it is still preferable to attempt to work out a child custody agreement together. Why? For one, you as parents have the best idea of what your child needs. Secondly, the courts prefer that parents try to come to an agreement among themselves. Courts are very busy and should generally be a last resort. Making a child custody agreement is difficult, and you will need help. Call the family law attorneys at Remington & Dixon. We are prepared to help you make an agreement that works for you and your family.
Planning and Scheduling
Making a child custody agreement involves planning for your child. That means scheduling when your child will live with you and when they will live with their other parent. It also means making a plan for how decisions affecting your child’s life will be made, and who will make them. These decisions will include things like healthcare, school, childcare, and religion. Parents should make a plan for these kinds of decisions together. Your custody agreement should include a holiday visitation schedule. This means planning which holidays your child will spend with you and which holidays will be celebrated with their other parent. The plan should account for school vacations, breaks, and special occasions.
Choosing the Right Child Custody Attorney
Jennifer Dixon handles numerous child custody cases in Charlotte every year. Her experience allows her to advocate well for your family.
Call 704-247-7110 today or visit the Remington & Dixon, PLLC office at 135 Perrin Place Suite 200 in Charlotte to schedule a consultation.
More Info on Child Custody
One of your biggest concerns as a divorcing parent is your child’s well-being. The last thing you want when ending your marriage is to create a worse situation for your child. One of the most important considerations during a divorce is where your child will live and with whom. Ideally, parents will be able to share custody of their child and still be able to parent as a team, but this is not always possible, especially during the early stages of divorce when things were particularly contentious and emotions are running high.
If you’re divorcing and you have a child or children, what should you know about custody and how your divorce will affect your time with your child?
First, it’s important to understand how sensitive child custody issues can be. It’s tough as a parent, especially if you are at odds with your spouse, to focus on your child’s needs and put your feelings aside. Often, parents believe they are doing the right thing by fighting their spouse on custody issues, but in the long run they realize they let their desires interfere with the process. It’s also difficult to remain clear-headed if you believe your spouse is threatening your right to spend time with your child.
The best thing you can do in these situations is to try your best to keep your child’s health and well-being your priority and work with an experienced attorney who can help you defend your rights and do right by your child. An attorney can also help you determine what to do and say when it comes to presenting your case for custody of your child to a judge. The sooner you get serious about your situation and understand the need to defend your rights the better.
What is the Difference Between Joint Custody and Primary Custody?
There are different types of custody arrangements available for divorcing parents. Choosing one type of custody over
the other might have nothing to do with who is a better parent or who loves their child more. It’s often a matter of what’s in the child’s best interest as far as living arrangements, financial needs, and other practical issues such as where they attend school or their relationships with extended family. As long as you are being treated fairly and decisions about custody are based on honest facts, you should try not to take a proposed custody arrangement as a personal attack.
The difference between joint and primary physical custody boils down to where a child lives and how much time he or she spends with each parent, while joint vs. primary legal custody determines who makes important decisions in the child’s life. When possible, the court grants joint custody to parents. When joint physical custody is not an option, the court does everything it can to ensure both parents are still a part of the child’s life and that each parent is granted as much visitation time as possible in situations in which this is safe for the child.
Most people agree that it’s healthier for a child when both parents can share the responsibilities of child-rearing and continue to act as a team, even though they are no longer married. When both parents can communicate with respect and both are deemed capable, the court will likely grant joint legal custody. Even if one parent is primarily responsible for significant decisions, the other parent is often given the opportunity to be involved in the decision-making process and be kept informed of things that happen in the child’s life.
What is the Difference Between Joint Legal Custody and Joint Physical Custody?
Also, there are also two types of joint custody: legal and physical. In joint legal custody, both parents are responsible for making decisions regarding their child’s life. In joint physical custody, a child lives with both parents and/or parents are granted equal time with their child.
The court considers a variety of factors when it comes to determine physical and legal custody issues, including the health of the child, the health of both parents, the living arrangements during and after the marriage ended, the relationships a child has with other siblings and other extended family members, where the child goes to school, and whether or not he or she participates in extracurricular activities. The court looks at the child’s life during the marriage and tries to keep the healthiest parts intact following the divorce.
What If My Spouse and I Agree on a Custody Arrangement?
Ideally, parents will be able to create their custody arrangement without much interference from the court. In most cases, parents will understand their child’s needs better than the court system, so it’s preferred they’ll create a parenting agreement that the court can sign off on without the judge having to decide the stipulations. The majority of child custody cases are settled in this matter before the court is forced to get involved. Parenting agreements can be discussed between parents or with the support of their attorneys and/or a third-party negotiator. The less contentious custody decisions are, the better it is for everyone involved, especially the child.
It’s important to have a custody arrangement in place as soon as possible. In some situations, a temporary agreement during the separation or divorce can set the groundwork for the permanent agreement, so it’s important you that careful when agreeing to anything on a temporary basis that you aren’t comfortable with long-term. Your attorney can help you with decisions about custody and be able to advise you on how best to protect your rights as initial and long-term custody decisions are made.
If you and your spouse have decided to end your marriage and you are concerned about your child’s well-being, we can help. We understand how important custody matters are during a separation and divorce, and we know it can be difficult to balance your own emotions and look out for the well-being of your child during this difficult time. We also know how frustrating it can be to feel as if your parenting abilities have been called into question by your soon-to-be-former spouse or the legal system.
To discuss the details of your situation or to schedule a consultation to learn more about custody issues, contact Remington & Dixon at 704-247-7110.
