When parents become legally separated, the first question is often what happens with the children? Over the years, I’ve talked with hundreds of clients who range from uncertain to scared nearly to death about whether they will be able to spend as much time with their children as they hope. Here are some common questions I often hear. Do any of them feel familiar?
- Can I get 50-50 custody?
- What if my spouse wants full custody?
- Would a Judge give me full custody?
- What if my spouse is a substance abuser or alcoholic?
- Will my child get a chance to testify?
- What do I do if my spouse is verbally abusive and will not communicate like an adult?
A child custody case can be a very scary thing, but I find that most folks feel much more comfortable after I talk with them about what the law says about their rights as parents, and how the child custody process works in North Carolina. Usually after one or two appointments, clients feel like they have a much better understanding about what a Judge might do, and therefore how they should focus their efforts on trying to reach an agreement with their spouse. This article is intended to provide some important insight into the broad and fundamental principles that apply to child custody cases according to North Carolina state law.
Child custody matters are governed by Chapter 50 of the North Carolina General Statutes. Specifically, sub-chapters 50-13.1, 50-13.2, 50-13.2A ,50-13.3, 50-13.5, 50-13.6 and 50.7 comprise the primary statutory authority as it relates to child custody matters. You can find those sections in their entirety here: https://www.ncleg.gov/Laws/GeneralStatuteSections/Chapter50
I have found that a good place to start is by defining certain terms that are often used in the context of two parents in a custody case. After all, in order to have an effective conversation about an issue, it is very helpful to have a working knowledge of the language.
- Physical Custody: This refers to the actual schedule, i.e., when is the child with dad and when is he/she with mom.
- Legal Custody: This is about decision-making, specifically about major decisions impacting a child such as healthcare, educational, religious upbringing and the like. Parents will need a way to navigate these decisions in the event that they disagree. If you are a parent, then I’m sure you have encountered situations in which you and your spouse didn’t see eye-to-eye about a decision that impacts your children. Once you are separated, and the child is living in two separate households, it is important that the parents have a clear-cut method by which they will approach and make these decisions.
- Primary Custody: This can mean a number of things. But it relates to both physical custody and legal custody. Primary physical custody means that one parent has the children in his or her care for more than 2/3 of the overnights per year, which means that the other parent has fewer than 1/3 of the overnights, which is called secondary physical custody. These parents will use their own child support calculator. Primary legal custody means that one parent might have more authority to make major decisions, such as a tie-breaking “veto” vote. But that isn’t necessarily the case, and these terms are often used in confusing ways. An experienced family law attorney can help you navigate this language, as it can have a major impact on your rights as a parent.
- Joint Custody: Joint custody can also mean different things, and it relates to both physical custody and legal custody. Joint physical custody means that both parents have at least 1/3 of the overnights with the children. This can mean 50/50, or it can mean 65/35, or anything in between. These parents will use a different child support calculator. Joint legal custody means that both parents will have a crucial role to play in making major decisions for their children. But beware the vague meanings that people will often attach to these terms, as they can be misleading. It is very important to speak with a family law attorney about how a particular deal or ruling will impact you in your unique relationship with your children.
- Full (or Sole) Custody: This is a term that many people use, but it rarely has much meaning. In a world where people used perfectly precise language, they would call this “primary custody,” followed by a definition of what exactly are the parents’ respective rights. However, we don’t live in a perfect world, and even Judges will sometimes use these terms in child custody orders. The closest meaning one can honestly attach to these terms is that one parent has most or all rights to time and decision-making with their child, and the other parent is pushed to the periphery. That doesn’t mean that one parent has zero rights, however. That would require a termination of parental rights, or “TPR,” which is an exceedingly rare scenario.
So how should you approach a custody case? What expectations should you have?
I’ve always found that a good place to start is by asking the following questions and then being honest about the facts in your particular case.
- What caregiving role has each parent played in the child’s life up until now?
- Is one parent more involved in the child’s academics, healthcare, homework, etc. than the other parent?
- What are the parents’ work schedules?
- Which parent is better able to provide the children with a nurturing home environment?
Parents will often disagree about the answers to these questions, which is why it is important to talk with a family law attorney about how to gather evidence and present a case in the event that a Judge needs to make custody decisions.
How does a Judge make decide custody cases?
First of all, I have always found it worthwhile for parents to at least try to resolve custody cases between themselves, without going to court. It is far less expensive, less stressful, faster, and it prevents the children from feeling the adverse effects of parental tensions.
However, if the parents simply cannot see eye-to-eye and agree on what custody schedule is best, then they should consider putting their case before a Judge so that he or she can make a custody ruling. Judges are bound by the over-arching standard in all custody cases, which is to make a decision that is in “the best interests of the minor child.” What does “best interests of the minor child” mean? That’s a very good question, and one Judge is likely to make an entirely different decision than another Judge. Child custody is almost certainly the vaguest and most nebulous issue that family law Judges hear and decide. However, an experienced custody attorney can help you through this process by aiding in parenting decisions and gathering evidence of your strengths as a parent, as well as the other parent’s weaknesses, to give you the best possible chance of a positive outcome at a child custody trial.
Once you have met with your custody attorney and discussed what a Judge might decide at trial, then you will have a much better idea of what a custody offer should look like. After all, if you can approximate what the likely outcome of a custody trial will be, then it can be wise to attempt to reach an agreement based on that outcome and skip the litigation process altogether. The problem often arises when one party doesn’t speak with an attorney, and they instead talk with their friends or family, or brother’s cousin’s realtor, about “what the law says about custody.” Those folks will often approach their custody case with unrealistic expectations, and misunderstandings about state law, which can lead to an unnecessarily drawn out custody battle.
This article presents a very basic way to approach child custody cases. Every family’s facts are different, and no two families are identical. It is very important to talk with a family law attorney who can guide you through the weeds of this complex area of law so that you are not taking a gamble with the future of your role as parent in your children’s lives. I’ve seen many parents come to me after-the-fact wanting to overturn the agreements they have with their ex-husband or ex-wife, but it is much, much easier to do it right the first time than to change a custody arrangement after signatures have been inked. There is nothing more important than the happiness and well-being of minor children, after all.
As always, this article is not legal advice, and it is important that you seek the advice of an experienced family law attorney regarding your unique facts and circumstances before making any major decisions that might impact you or your family.