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 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.
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 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
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.
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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