Child Custody

What factors are considered when deciding who will get custody of the kids?

The process of determining custody can be extremely complicated. Some parties make their own custody arrangements, either through Consent Orders or Separation Agreements, but if the parties cannot reach an agreement, the Court will make a ruling. In North Carolina the over-riding factor in determining custody is what is in the best interest of the child. This can mean many things, but frequently a Judge will consider the age of the child, who has been the primary caregiver during the marriage, the amount of time each parent has available to devote to the child, and the living situation and environment each parent can provide, among other things. A Judge will also look at efforts on behalf of one party to undermine or cooperate with the other parent. Someone who is striving to make transitions between households go as smoothly as possible will be looked upon more favorably by the Courts than someone who makes every visitation contentious. Judges will also very seriously consider things like abductions, allegations of child abuse or neglect, and drug and alcohol problems. Judges also frown upon situations where one party is refusing visitation because the other party is not making proper child support payments. The Court makes its best effort to address each child’s individual situation. With very few exceptions, the Courts almost always allow whichever parent is not awarded primary physical custody some sort of visitation privileges.

What is the difference between joint custody and sole custody?

It depends on whether you are speaking of legal or physical custody. See the difference explained below.

Joint physical custody simply means that both parties share physical custody of the child, either with one party acting as the primary custodian, and the other having some sort of visitation or secondary custody privilege or with each p[aren’t having equal time with the children, i.e. a true joint 50/50 schedule. Sole physical custody means that the child only resides with one of the parties without any visitation from the other party at all.

Joint legal custody means that the parents share joint responsibility for making major legal decisions for the child, such as choice of school or daycare, medical treatment, religious upbringing, etc. and that each parent has equal rights to access records regarding the child’s medical treatment, school records, etc. The Courts most typically award joint legal custody. Sole legal custody means that one parent bears sole responsibility for major legal decisions and day to day decisions for the child. Sole legal custody is fairly rare, but may be appropriate in cases where the non-custodial parent has severe substance abuse problems, has been abusive towards the spouse and/or children, or has proven that they cannot be a cooperative and positive co-parent.

If my spouse gets awarded custody, do I have any say in my kids’ lives?

It is important to understand that ending a marriage by divorce does not end a person’s parental rights or obligations to their children. Even though many children spend more time with one parent than the other, both parents are entitled to a say in major decisions in the child’s life (except in the event of sole legal custody discussed above). The parameters for decision-making and information sharing can be set out in your Separation Agreement or Court Order.

What is the difference between physical custody and legal custody?

Simply speaking physical custody is just a description of with which party the child resides. Legal custody describes a party’s ability to legally make decisions for the child. See discussion of each above.

Do the kids have a say in deciding with whom they will live?

In North Carolina, weight is given to the opinion of a child when they are at an age of suitable discretion, but there is no set age at which this happens. Largely it is up to a Judge how much weight, if any, they choose to place on a child’s wishes and when a child is old enough to speak to the Court about their wishes. Typically this will not happen until a child is at least age ten or older. Ultimately, the deciding factor is still the best interest of the child, rather than a child’s preference.

What is visitation?

Visitation, also sometimes called secondary physical custody, is a right to visit and spend time with their child. It is exercised by the party with whom the child does not primarily live and is usually set forth in a specific schedule.

Can I deny my spouse visitation if they do not pay child support?

No. Child support is enforceable by other means such as showing violation of an Agreement or Court Order, which is punishable by fines and even jail time. In fact, denying visitation for financial reasons may actually cause you problems with custody. Judges are interested in the best interest of the child, not the best interest of your bank account. If you refuse visitation until your spouse pays, the Court may find you in contempt of a Court Order or even allow for a modification of custody to prevent you from being able to withhold visitation in the future.

What is child custody mediation?

Whenever you file a court action regarding child custody in North Carolina, you will be required to attend custody mediation. This is a method of attempting to resolve your custody case by meeting with a mediator who tries to help you and the other parent come to an agreement regarding child custody and visitation. This is required by the Courts because the Courts support amicable resolution of child custody whenever possible because typically it is much better for the children if both parents can cooperatively and amicably reach decisions about custody and visitation. Any agreement reached at mediation will include details about the regular visitation schedule, holiday visitation and decision making and information sharing. The Agreement will be submitted to the Court and signed by a Judge so that it will be a Court Order. Mediators do not make decisions like Judges do, but are trained to help facilitate communication between parties in an effort to help the two parents reach a mutual resolution. If no resolution is reached, the case will then be released from mediation and can be scheduled for a hearing with the Judge.

Parties may also agree to attend private mediation with or without their attorneys outside the court process to attempt to resolve child custody by agreement without the necessity of filing a court action.

Child Support

If parents share custody does anyone have to pay support?

Situations do arise where one party still has to pay child support even if the parents share equal 50-50 custody. Only if both parties were to have the same income and spend the same amount of time with the children would neither party have a support obligation. It is also relevant whether one party pays for medical insurance or work-related childcare expenses for the child.

What guidelines are used to determine child support?

In North Carolina, child support is based on a series of rules called the Child Support Guidelines. Essentially, guidelines take into account the amount of time the child spends with each party, each party’s income, and their contribution to the child’s expenses, such as work-related child care expenses and health insurance costs. There are also some extraordinary expenses that may be taken into account in some situations if the child has special needs.

For how long is child support paid?

Under North Carolina law a child is entitled to support until the first of the following events occurs: the child reaches the age of majority (18), gets married, or becomes otherwise emancipated under the law. There are a few exceptions:

  • The child has reached age 18, but has not graduated from high school. As long as the child is enrolled in high school, support will continue until the child graduates or until the child reaches age 20, whichever comes first.
  • The parties make a legally enforceable written agreement to pay support past age 18.

Can my spouse avoid child support by filing bankruptcy or quitting work?

Child support obligations cannot be discharge in bankruptcy court. The Court may also find a party in violation of a Court Order if a party chooses to become willfully unemployed or underemployed. If necessary, child support can also be garnished from unemployment wages.

If my financial situation has changed, can I modify my child support?

Yes. The Courts understand that people lose their jobs or have other unexpected events occur. It is important that you modify your child support to reflect your actual income if there is a significant change so that you will not be penalized for arrearages if your payments become too high. The same holds true for positive changes, too. If one of the parties receives a substantial raise or changes jobs, the children may be entitled to receive some benefit from that improved situation by modifying support as well.

Generally in N.C., child support is modifiable upon a showing of a substantial change in circumstances; or every three years, if application of the Guidelines yields an upward or downward deviation of 15% for the previous child support obligation. You may agree to more frequent reviews of child support in a Separation Agreement.

Can the Court order my spouse to pay for my child’s college expenses?

No. In N.C., child support terminates at age 18 or graduation from high school (see above). The Court cannot require a party to pay for college expenses, but parties can agree to share college expenses or one party can contractually obligate themselves for college expenses in a valid Separation Agreement. Therefore, if you are considering a Separation and Property Settlement Agreement, be sure to think about whether you want to include a paragraph regarding college expenses, because you will not be able to seek payment towards college expenses from the other parent at a later date from the Court.

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Durham County Family Court Rules
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