North Carolina Custody and Visitation Guidelines

North Carolina Custody and Visitation Guidelines

North Carolina is a rare state where issues of child custody are most often decided by consent between the parties. Custody arrangements do not have to be submitted to or signed off on by a judge to be enacted into an order

In North Carolina, when a custody dispute is filed, parents must first participate in mediation. When mediation fails, a court must then determine a custody arrangement. North Carolina courts believe that it is important for both parents to have “maximum involvement” in the child’s upbringing. Therefore, courts can award either joint or sole custody.  There is no specific definition of joint custody in North Carolina. This means that a joint custody arrangement does not need to equally split the child’s time with both parents.  As long as the child has at least 123 overnight visits (one-third of the year) with each parent, it is considered joint custody. Sole custody is different because, in addition to physical control of the child, the parent with sole custody also has the exclusive right to determine how the child is to be raised.

Best Interests of the Child Standard

In North Carolina, there is no preference established in the law for the mother or father or the natural or adoptive parent to receive custody of the children. A court determines custody using the “best interests of the child” standard. In North Carolina, several factors are examined, including: (1) whether there is any history of domestic violence by either parent; (2) the child’s safety, especially where there are allegations of child abuse; and (3) each parent’s involvement in the child’s life, at home, at school or in extracurricular activities.

Secondary Custody

Secondary custody is North Carolina’s term for visitation rights. A judge may also vest sole power to make major decisions on the child’s behalf with the parent who has primary physical custody. This sort of arrangement is commonly referred to as sole custody. The term joint custody does have child support implications, however. If the parent with secondary custody has visitation 123 nights a year or more (more than two nights a week) a joint custody worksheet is used to calculate child support.

Parents’ Rights

A parent’s right to have custody of his child over a relative or non-relation is nearly absolute in this state. North Carolina has also abandoned what was once called the tender years doctrine, which heavily favored mothers in custody issues. However, in the case of infants and toddlers, many judges still lean toward the mother for primary physical custody.

When deciding custody, North Carolina courts cannot give a preference to either parent based on gender. Mothers and fathers have an equal right to custody. of their children. Courts do not give any preference based on gender. Children can be emotionally traumatized by their parents’ divorce. That trauma can be lessened when parents are able to cooperate and reach a custody arrangement without court intervention.

Unmarried Parents

Unmarried parents in North Carolina have the same custody rights as married parents. Support for children born outside of marriage cannot be enforced until paternity has legally been established. Regardless of marital status, parents can settle custody matters out of court by signing “separation agreements.” If a custody dispute goes to court, the three main principles under consideration will be the child’s welfare, the rights of the parents and in some cases the child’s wishes

Paternity

If a father wants custody of, or visitation with his child, he must sign a declaration of paternity and file it with the child support agency in his county. If the mother denies paternity, the father must take a DNA test. A court will name the man as the legal father if the test shows at least a 97 percent probability that he is the biological father.

Visitation

If the mother is named as the custodial parent, the unmarried father has the right to exercise liberal visitation, convenient to the child and parents’ schedules. The father and child can also communicate by email, telephone or web cam.

Military Parents and Child Custody in North Carolina

According to North Carolina child custody laws, if a military parent has sole or joint custody of a child and receives deployment papers that involve moving a substantial distance from the parent’s home, a North Carolina family court will issue a temporary custody order of the child during the parent’s absence, which shall end no later than 10 days following the parent’s return.

Modification of Custody Orders

A custody order can be modified at any time. However, the parent seeking modification must prove that there has been a “substantial and material change” in circumstances and that modifying the order would be in the best interests of the child.

Registration of Out of State Custody Orders

A “foreign custody order” may be s registered with the courts of North Carolina so the initial custody order can be enforced just as if it was originally issued in North Carolina. In order to register a foreign order with the North Carolina courts, three main categories of documents are required: (1) a letter requesting registration; (2) two copies (one certified) of the foreign custody order and an affidavit stating the foreign custody order has not been changed; and (3) the plaintiff’s (the requestor’s) name and address and names and addresses of any other parties with custody or visitation rights according to the foreign custody order.

After filing the appropriate documents, anyone else who has been awarded custody or visitation rights, must be notified of the new proceeding. A hearing is then held by the court to determine whether or not the order is confirmed. If the order is confirmed, it is effective as of the date of the registration.

Enforcement of Rights

As visitation in North Carolina is considered a version of custody, the same rules apply when it comes to the best interests of the child. While it can be the case in extreme situations, it is seldom decided that the non-custodial parent be denied any visitation rights to his child. Once custody is awarded, it is enforceable by civil contempt proceedings, and failure to obey the judge’s order can result in criminal charges being filed.

Note:  The foregoing information is provided as general family law guidelines in North Carolina and should not be considered as legal advice specific to your case.  After reviewing the above material, you will be presented with the opportunity to submit more details specific to your case directly to About The Children.

By:  Linda O’Marie, Paralegal

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Posted in Child Custody, North Carolina
4 comments on “North Carolina Custody and Visitation Guidelines
  1. Sherry.bliss56@gmail.com says:

    My son lives in north Carolina and hasn’t seen his daughter in over 6 months his wife will not answer the phone and told him if he came to her house he would be arrested he is a veteran and a student she had a couple of affairs and that is how all this started Really need where to turn as i would love to see my granddaughter also

    • Hi Sherry, it’s great that you’re helping your son and want to be involved in your granddaughter’s life as well. One of the best ways to enforce anything in family court is to get a court order signed by a judge that defines a parenting schedule. It sounds like your son wants to be a part of his child’s life and the mother is making this difficult. The bottom line however is that a child needs both parents in their life and a judge’s decision will reflect this. If your son wants to fight for custody or visitation rights for his daughter, then he needs to find someone that can help him file the right documents to get his story in front of the judge so they can see that he’s got the child’s best interests at heart. Unfortunately, our company cannot assist in North Carolina due to our office being out of state. Your best bet is to find someone that can work in North Carolina such as a family law attorney. Please keep following the blog for more helpful tips on how to go through the family court process and helpful parenting tips as well. Thanks for writing to us. We wish you and your son the best in your case.

      • Sherry.bliss56@gmail.com says:

        Do you know of any organizations that can help him obtaining visitation in north carolina? He is under the impression that until he gets divorced the court will not help him see his daughter

      • Hey Sherry, a quick Google search should yield some good results for you and your son. Here’s a link to the NC legal aid website that may be of assistance. We hope your case gets resolved quickly and in a good way. Thanks for following us.

        http://ww2.legalaidnc.org/assist/custody/

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