|Child Custody and
Few issues in divorce have as much emotional impact as the subject
of child custody.
Child custody refers to a collection of responsibilities and
rights that parents have regarding their children’s general
welfare, authority, religion, education and health care. Spouses
may settle custody and visitation issues out of court through a
private agreement, which is the most often used and preferred
Custody may also be settled out of court by a parenting
agreement or consent order that is later approved by a judge.
The challenge in private custody agreements is to develop a
practical arrangement that enables each parent to maintain a
consistent relationship with agreed to measures for raising their
If you are facing a child custody process, it is important to
carefully consider both existing and future needs to ensure that
you remain satisfied with your legal relationship with your
children. Until child custody is agreed on a court makes a ruling,
each parent has equal rights to physical custody of the child.
In cases where custody is contested, the court must make a
determination to “promote the best interests and welfare of the
child”. The best interest of the child is the "polar
star" by which courts should guide decisions about custody.
The judge will consider your past and present conduct, and whether
the evidence supports your custody claim. You must demonstrate
that your behavior and abilities will enhance your child’s
overall welfare better than your spouse’s. Other factors taken
into consideration include:
- Physical, mental, emotional, moral and religious
- The child’s preference,
- Each parent’s caretaking ability,
- Each parent’s home environment,
- Each parent’s availability to the child,
- Each parent’s economic situation and potential,
- The child’s bonding with other siblings, and
- Other factors that illustrate what is best for the
A custody action may also be brought to court by any parent,
relative, or other entity (subject to certain exceptions) to claim
custody of a minor child. In these cases, a child's natural parent
is generally entitled to the custody and care of the child in an
initial proceeding for custody. If it is determined that a
non-parent would provide better care for the child than the
biological parent and that the biological parent has acted in
certain bad ways, the judge may award custody to the petitioning
non-parent (such as a grandparent). This is a complex area of law
and you should seek the advice of an attorney.
North Carolina statutes show no preference to either a mother
or father in custody matters. The court may award equal custody
(joint custody) to both parties, or give primary custody to one
parent (sole custody) and visitation privileges to the other.
Joint physical custody can be an equal time sharing of time
between parents and requires the greatest amount of cooperation.
There is also joint legal custody which deals with how decisions
are made for the child.
In a divorce, the custody action may precede or follow the
divorce or take place while the action is pending.
Until you and your spouse settle on a custody agreement, or
until a court issues custody ruling, each parent is entitled to
co-equal rights to the physical possession of their child. A
written document formalizes custodial and visitation rights and
prevents unplanned changes in custodial arrangements by either
Custody decisions will affect your family life after divorce
for a long time, so it is in yours and your child’s best
interests to understand your legal rights and obligations. An
experienced Family Law attorney can assist in developing and
negotiating comprehensive custody settlement agreements, providing
references to mediation expertise, and formalizing agreements
reached as a result of mediation or litigation.
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