Of the many issues in domestic law, child custody is perhaps the most emotionally charged. For this reason, it can also become the most expensive sort of litigation that might result from your separation. In North Carolina you and your spouse may settle issues of custody and visitation by private agreement; custody does not have to be submitted to a judge. Until you both settle, or until a court issues a ruling on custody, remember that the general rule applies: each parent has co-equal rights to the physical possession of a child of the marriage. In deciding what kind of custody you will try to reach, it is important to know what the different terms mean. The main difference is in who will have decision-making authority. Sole custody means that the parent with possession has most or all of the decision-making authority, and joint custody tends to indicate that each parent will have some decision-making input.
Going to Court
If custody goes to court, you should keep several principles in mind. First, the focus on the best interests of the child in determining with whom your child will reside in essence forces the court to direct its attention principally to you and your spouse The court, therefore, will carefully examine your conduct in the past and, based on your past history, the court will predict how you will behave in the future. The trial judge is given wide discretion in his or her determination. Appellate review is very limited in this kind of litigation, as the courts of appeal are unwilling to substitute their judgment of the facts for the trial judge who presided over the proceedings.
Second, your child may not necessarily participate in the proceeding, even though his or her welfare is the focus of the proceeding. This is so because you, the judge, and your lawyers may all agree that appearing in court might be unduly traumatic for your child; or, the child may be too young or fragile to understand what might be asked of him or her.
If your case goes in front of a judge, it is very beneficial to have a list of witnesses that can testify on your behalf. Witnesses should be chosen on the basis of not only their own involvement with you and your child and their possible expertise on your child's needs, but also on the basis of the recency and frequency of their contacts with you and your child. You are much better off with witnesses who have seen you and your child a lot over the past year than with witnesses who have not seen you and the child together in the last three years or who have seen you and the child only very occasionally. You should consider a variety of people as possible witnesses: family members, social workers, daycare providers, psychologists or psychiatrists, teachers, extracurricular activity leaders, ministers, pediatricians, parents of playmates and neighbors to name just a few.
Judges consider a variety of factors in determining which parent is entitled to custody including the age of the child, the time each parent has available to spend with the child, the stability of the parents, efforts by either parent to undermine the other parent, abductions, moves out of state, facilitation of visitation and involvement of the other parent, child abuse and neglect, drug and alcohol problems, religion, non-marital sexual relationships and the preferences of the children. In almost all cases, the parent not being awarded custody will be awarded a period of visitation with the child.
In preparing for a custody case, be aware that your parenting skills and daily interactions with your children will be thoroughly reviewed by a judge. You will want to continue being the best parent possible. By continuously acting in the best interests of your children, you will provide your witnesses with positive testimony for your case. In addition, you may want to secure photographs or videotapes of the rooms of the place where your child would live with you, as well as photographs of your neighborhood and yard. Photographs and videotapes serve to sharpen a judge's personal experience with you and your children.
The fact that there is a custody order does not end the matter forever. As already mentioned, an order awarding child custody may be modified or vacated at any time upon one party's motion and a showing of changed circumstances by the interested party. "Changed circumstances" are changes affecting the child's welfare both positively and adversely. The changes must, moreover, be substantial for the prior order to be modified.
Visitation
The non-custodial, secondary parent's time with the child is commonly referred to as visitation, which is viewed in North Carolina as a lesser version of custody. Hence, the same principles apply to custody as to visitation in regard to the best interests of the child, parental rights, the child's wishes, and the discretion of the trial judge. In most residential arrangements for children of divorce, one parent has more custodial time with the children and the other parent has less custodial time, also known as "visitation". Visitation refers, in other words, to the custodial time assigned to the parent with whom a child does not primarily reside. In litigated custody cases in North Carolina, the secondary parent is most frequently awarded alternate weekends, sometimes one overnight during the week or another evening for supper, half of all major holidays, and special days such as Mother's or Father's Day and birthdays. Over the past few decades, there has been a judicial trend toward increasing the number and length of visitation periods for the secondary parent, although different judges in North Carolina have different philosophies regarding this issue. A few judges believe, for instance, that very young children should remain in one setting most of the time. These judges would, accordingly, award less visitation to the non-custodial parent, at least until the child is older.
Although many clients think they can tie child support payments to visitation privileges, it is important that you understand that the one is legally independent of the other in terms of either unilaterally withholding support or suspending visitation. Thus, for example, if one party has not received the appropriate child support payment, he or she may not independently decide to bar the other from exercising any visitation rights. There is no supportable legal foundation for such a move. In addition, such retaliation can potentially impair your child's welfare.