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Typically, the breakup of a marriage is more traumatic for the children of the marriage than for the parents. Thus, parents intending to separate should exercise great care in making the transition as conflict-free and smooth as possible.
When a child’s parents decide to separate, decisions regarding the custody, care, and support of the child must be made. If the parents are not able to resolve the issues of custody or child support, either person can initiate a case in the county where the child resides, and ultimately, a judge will make the decisions. North Carolina law directs District Court judges to protect children until they reach majority (usually age 18) by determining what is best for the child. Generally, the child and the parents will be better served by putting the child’s welfare first and trying to decide what is best by agreement rather than by litigation. A child should never be used by a parent for revenge — the child’s needs and interests should come first. In addition to arguing in front of the child, other actions that put stress on the child include putting down the other parent, telling the child that the other parent is the cause of the problems, or making the child relay messages to the other parent. Remember that you and your ex created this special being, and despite the breakup of your relationship, you and your ex must continue to communicate civilly for the sake of your child for years to come.
NEGOTIATION OR LITIGATION?
In an effort to avoid litigation, counties offer, or sometimes mandate, state-supported mediation to facilitate decision-making by the parents. In Wake County, for example, all parties involved in a child custody case must attend an orientation session and then a mediation at the courthouse before a hearing can take place. The mediation can be waived if one party lives more than fifty miles away, if the parties have already mediated, or if there is a domestic violence protective order in place. If mediation fails to resolve the case, a District Court judge is authorized to decide who should have custody, how much visitation the noncustodial parent will have, and how much child support the non-custodial parent will pay.
Litigation may be expensive, with both parties usually
represented by an attorney. Litigation means the parents give
up control over decision-making that has an enormous impact
on their child. A judge will, at most, have only a few hours of
contact with the parties and little or no contact with the child
at issue. No judge can ever know as much about the needs of
a child as the parents do. Since litigation usually ends with both
parties feeling bitter and unhappy about the results, use of the
courts to resolve issues of custody and support should be a last
resort — when there is no other way.
CUSTODY CONSIDERATIONS
When deciding who is awarded legal custody during a custody
trial, the judge considers certain facts and issues to determine
the best interests and welfare of the child. Here are some
guidelines:
• What is the child’s age?
• Who assumed primary responsibility in caring for the
child during the marriage?
• Who would feed, bathe, clothe, and teach the child during
the week?
• What is the work schedule of each parent who works
outside the home?
• What is the physical, emotional, and parental ability of
each parent?
• With whom is the child bonded psychologically?
• Is either parent trying to prevent the child from continuing
a relationship with the other parent?
• Is either parent trying to use the child just to hurt the
other parent?
• Is either parent really unfit, unwilling, or unable to properly
and appropriately raise the child?
There is no legal presumption for either the mother or the
father as the custodial parent. The only question is the welfare of the child.
AGREEMENT V. ORDER
Custody, whether sole custody or joint custody, is valid if it is
part of a written and properly executed agreement or if part
of a court order. Consent orders may be entered by agreement,
i.e., without a trial. Even if a lawsuit has been filed, the two
parties may reach an agreement on their own and ask the court
to approve their agreement. The agreement almost always will
be approved; the result is called a consent order, which can be
enforced by the court.
The form of your custody determination — agreement or order
— may make some difference. Each is enforced differently and
treated differently if a change in custody or visitation needs to
be made in the future. You should consult an attorney about
what is best for you and your child.
PHYSICAL CUSTODY
Physical custody refers to where the child will be residing.
When one parent has physical custody of a child, the other
parent usually is granted visitation privileges. Except in
extraordinary circumstances, it is healthy and desirable for the
child to have regular contact with the non-custodial parent.
Three visitation options are:
• Reasonable Visitation: There is no set time for child visitation,
rather it will be subject to agreement between the parents.
Although it provides flexibility, it will not work unless the
parents can agree on what visitation is “reasonable.”
• Structured Visitation: There is a schedule for child visitation
that may include visitation every other weekend from Friday
evening through Sunday evening, alternating holidays through
the year, and several weeks during summer vacation.
• Joint Physical Custody: There is a schedule where each parent
spends a significant portion of the time with the child, so that
the child resides with both parents.
Until the parents execute a written separation
agreement with provisions for custody or a court
grants custody to one parent, both parents have
equal rights regarding their child. This does not,
however, give one parent a right to take the child
from the other. Usually, agreements and court-ordered
custody place the child primarily with one parent and
give the other parent time with the child — at least two
weekends each month, alternating major holidays, and
extended time in the summer.
LEGAL CUSTODY
If parents are granted joint legal custody, it generally
means that the parents should jointly make major
decisions for the child. Joint legal custody implies that
both parents are to make the necessary educational and
health decisions for the child, and have equal access to
the child’s health and educational records. When a judge
must decide the issue of custody, it may be because
the two parties cannot work together and resolve
matters concerning their child. If a judge grants joint
legal custody, this essentially means both parents must
cooperate in making major decisions such as school
selection or major medical decisions affecting their child.
When separated parents agree upon joint custody or
the court decides that the parents should be granted
joint legal custody of a child, it does not mean that each
parent has physical custody of the child for half of the
child’s time. It means that the parents should continue
to cooperate and work together to make the major
decisions for the child.
Joint custody, whether it is joint physical custody or
joint legal custody, can be beneficial for the child if
the parents are interested in and capable of working
together for the child’s best interests and welfare. On the
other hand, it can be disastrous if one parent is bent on
obstructing or undermining the other parent or the child.
THE AMOUNT OF CHILD SUPPORT
Each parent has a duty to support his or her children.
North Carolina has adopted child support guidelines
that apply to all cases and are based upon the income
of both parents, the type of custodial arrangement that
exists and factors such as day care and health insurance
costs. Forms for determining the amount of support
can be obtained from the Administrative Office of the
Courts or online at the North Carolina Child Support
Enforcement website.
Visitation/Child Support Issues
Q: Will the full amount of child support be reduced if the
child spends a relatively long period of visitation (three
or four weeks) with the supporting parent?
A: A separation agreement may allow credit, reducing
the child support under such circumstances. All North
Carolina courts use guidelines that take into account
extended time with the non-custodial parent.
Q: Is there a relationship between child support and
visitation?
A: Some parents with custody refuse to allow
visitation when support is not paid, or a parent
will withhold child support when not able to see a
child. Under North Carolina law, visitation and child
support are not related; neither parent has the right to
withhold support or visitation. Instead, the aggrieved
parent must seek help from the court.
CONCLUSION
Your child will benefit if matters of custody, visitation, and
support can be determined amicably. When that is not possible,
either parent or anyone seeking custody may petition the
court to decide. Custody, visitation, and support issues are not
concluded until the child reaches majority. An agreement or
court order may be changed if the circumstances warrant. For
custody and visitation, majority occurs when the child reaches
his or her 18th birthday. For child support, it may continue until
the child graduates from high school or reaches his or her 20th
birthday, whichever occurs first. If the support has been agreed
to by the parents, it is not uncommon to make provisions for
financial assistance for children who may
go on to college.
If you need to find an attorney to assist you in your child custody or child support case in North Carolina, you may search for an
attorney in your county at www.ncaj.com under “Find a Lawyer.”
