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Raleigh, NC 27612
Issues involving custody of children can be not only one of the most emotionally tolling issues to resolve, but is usually one of the most expensive issues to litigate. The overarching prinicple of North Carolina's custody laws are "what is in the child's best interest?" Unlike some areas of family law, what's in the child's best interest is open to interpretation and differing views. I like to tell clients that when it comes to custody, "One plus one does not always equal two; sometimes it equals 203 and sometimes it equals -1002." This is one of the many reasons I encourgae my clients to resolve custody outside of a court hearing as the parents generally have much more control over their family. It is difficult to give a judge all of the relevant information he or she needs to make a decision in just a few hours.
There are two aspects to custody- physical custody and legal custody. Physical custody is the schedule of when the child is physically in each parents' care. Judges have a considerable amount of discretion in determining the schedule, and factors that influence what is in the child's best interest. Typically, physical custody is classified as either "primary" or "joint," but there is no set definition for either of these terms; however, primary custody is usually considered to be when a child lives primarily with one parent and has "visitation" with the other parent every other weekend. Joint physical custody is typically used when the parties more or less have equal time with the child.
North Carolina law used to have a satutory preference to award primary physical custody to mothers, which was called the tenders years presumption, but that law was abolished in 1977. Despite the statutory repeal, this presumption still remained as an underlying consideration in awarding custody, and was still prevalent in the 1990s. As the years have progressed, however, this presumption has all but eroded, especially in more urban and rural counties. There is a large body of pyschological research showing that children do "best" when they spend as much time with both parents, even if one of those parents is just an "adequate" parent.
Legal custody is being able to make the major decisions for the child, such as schooling, religious upbringing, and medical care. Today, most courts favor awarding joint legal custody to the parents, meaning that each parent has an equal say in these decisions. Sometimes the Court will delegate certain areas or decisions to one parent, (and especially in the event the parents cannot agree), and such categories can include medical decisions, educational decisions, and/or religious upbringing.
If a case is "high conflict," a Parenting Coordinator can be ordered by the court upon request by either party or if the parties both agree. This person is either an attorney (usually a family law attorney) or non-attorney who has specific education and training. A parenting coordinator has the authority to make decisions, similar to the judge, in the event the parties cannot agree without having to wait to bring the issue before the Court.
I encourage parents to resolve custody issues without the court's involvment, not only because it will be less expensive, but it allows the parents to keep greater say regarding their children. Sometimes though, this is not possible, such as if there is a history of domestic violence or abuse, and custody must be decided by a judge.
When a lawsuit for custody is filed, parents are required to participate in custody mediation, which is run through the Court system. This program encourages parents to work together to reach a parenting agreement that works for their family. Custody mediation can be waived if there is domestic violence between the parents, or if one of the parents lives more than fifty miles away. You can read more about Custody Mediation