Child Custody and Visitation
Child Custody Attorneys in Western North Carolina
Child custody and visitation can be some of the most difficult and emotional
aspects of a divorce. Raising children can be extraordinarily difficult
for parents, even when those parents are happily married. A separation
and divorce amplify these difficulties and can cause significant additional
issues for the divorcing parties.
A wide variety of custody agreements can be utilized to minimize stress
on minor children involved, and to create the best possible parenting
environment under the circumstances. By working with one of our experienced
family law lawyers, you can create a custody plan that best works for
you and your children. Our attorneys can explain the various types of
plans available and work to help the parties reach a formal, written agreement.Our
attorneys can also explain many of the common terms used when discussing
child custody. To read more of the common terms used, please visit our
Custody Terms or contact our firm.
A Practical Overview of Custody
As soon as the parents separate, custody can become an issue. Now that
the parties are living apart, where will the children spend their time?
The issue of child custody is frequently settled by voluntary agreement
between parents, who make their decision based on the best interests of
the children. In fact, it has been shown many times that problems creatively
solved by parents regarding the custody and support of their children
are more readily adhered to by everyone involved, rather than those imposed
by the court based on criteria that does not address the uniqueness of
your circumstances. The process of learning to solve problems as separated
parents is much different than problem-solving an an intact family. Tools
provided to parents during the separation and divorce proceeding can help
the transition go more smoothly.
If the parties cannot reach an agreement on custody, the issue must be
decided by a hearing in District Court. The courts will generally consider
the following when making a child custody decision:
- Age of the child
- Each parent’s physical and mental health
- Each parent’s relationship with the child
- Any special needs of the child
- The child’s current living situation and contact with each parent
- Each parent’s employment and financial situation
- Any history of abuse or neglect
This is not an exhaustive list and several other factors may also be taken
into consideration depending on the circumstances of the case.
Contrary to popular belief, North Carolina law does not allow children
to choose which parent they will live with until they are 18. A mature
child can tell the court their desires and why they wish to live with
one parent over the other, and the court may consider this when awarding
relative custodial rights to one parent over the other; however, this
consideration is completely within the discretion of the court. While
courts are required to allow a child of appropriate age and intelligence
to testify, it is the general preference of most judges that the child
not be called to testify, regardless of their age.
Whether the parents reach an agreement or a court has to step in and issue
an order, the end result is that the parents should have a written parenting
plan governing how the time with the minor children should be shared and
how major decisions for the child should be made. As discussed below,
these plans will cover most aspects of the children’s lives and
will govern how much time the children spend with each parent.
North Carolina Policies and Presumptions
First, it is worth noting the State of North Carolina’s policy on
child custody. This policy is codified in
§ 50-13.01, which states:
It is the policy of the State of North Carolina to:
- Encourage focused, good faith, and child-centered parenting agreements
to reduce needless litigation over child custody matters and to promote
the best interest of the child.
- Encourage parents to take responsibility for their child by setting the
expectation that parenthood will be a significant and ongoing responsibility.
- Encourage programs and court practices that reflect the active and ongoing
participation of both parents in the child's life and contact with
both parents when such is in the child's best interest, regardless
of the parents' present marital status, subject to laws regarding
abuse, neglect, and dependency.
- Encourage both parents to share equitably in the rights and responsibilities
of raising their child, even after dissolution of marriage or unwed relationship.
- Encourage each parent to establish and maintain a healthy relationship
with the other parent when such is determined to be in the best interest
of the child, taking into account mental illness, substance abuse, domestic
violence, or any other factor the court deems appropriate.
As can be seen from § 50-13.01, it is the general intent of the State
of North Carolina that both parties actively participate in the life of
the minor child or children. However, this does not create any presumption
of equal time for each parent.
No Specific Custody Presumptions
While the statutes lay out general policy, there are no specific presumptions
for specific time-sharing plans in North Carolina. For example, at one
time there was a doctrine known as the “tender years” doctrine,
which held that for children under approximately four years of age, the
mother should have custody of the minor child. This presumption no longer
applies in North Carolina.
Also popular is the misconception that there is a presumption for equal
time of “50/50” custody between the parents. While this is
a popular way of sharing time with the children, including rotating week-to-week
schedules and a “2-2-3” split (wherein one parent has Monday
and Tuesday, the other parent has Wednesday and Thursday and the parties
rotate Friday, Saturday and Sunday), there is no statutory or case law
presumption for equal time sharing.
While no legal presumptions give judges a starting point in determining
custody, specific judges tend to have their own initial starting point
when it comes to custody. For example, some judges may have a general
philosophy that as long as both parents are fit, that custody should be
equal or close to equal. Other judges may believe that, generally, one
parent should have the child a majority of the time for the sake of stability,
with the other parent having frequent visitation. Because it is impossible
to know what a specific judge will do with a specific case, it is vital
that when seeking any custody arrangement from the court, the parent present
the best possible case for the custody arrangement they’re seeking.
Custody: The Legal Standard
If there are no formal presumptions, then what is the legal standard by
which the court determines custody? The simple answer is that once a court
determines that a person has standing to pursue custody, the custody of
a minor child shall be awarded to such person, agency, organization or
institution as will best promote the interest and welfare of the child.
See Section 50-13.2, North Carolina Statutes. This statutory provision codified the rule that the welfare of the child
is the “polar star” that guides the court's discretion
in child custody cases. Some states have specific enumerated criteria
the court must refer to when making a finding regarding child custody.
This is not the case in North Carolina. In Asheville, Western North Carolina
and the rest of the State, the court has wide discretion to consider “all
relevant factors” in making a child custody determination.
Parenting Agreements & Litigation of Custody Claims
Because the court has wide discretion when it comes to awarding custody,
it is absolutely vital that the party present the best possible case as
to why the custody arrangement being sought is in the best interest of
the child. It is vital that a party pursing custody work with an experienced
attorney when preparing for a custody hearing.
Local customs, rules and requirements in Buncombe, Henderson, Madison and
surrounding counties in Western North Carolina, in conjunction with the
Rules of Evidence and relevant statutes on child custody, can make the
presentation of a comprehensive child custody case extremely challenging.
Our family law attorneys at The Van Winkle Law Firm have extensive experience
in custody matters and litigation. Backed by one of the largest and oldest
law firms in Western North Carolina, our attorneys have the experience
and resources to work with you to prepare the best possible child custody case.
Contact one of our experienced family law attorneys today to set up a consultation to talk about your case. It is never too
early to discuss custody options and to know your rights when considering
a separation. Since 1907, The Van Winkle Law Firm has been a trusted source
of legal representation in North Carolina. Our family law practice is
focused on exceeding the expectations of our clients by creating favorable
solutions to even the toughest divorce issues. If you are seeking a divorce
and need assistance with a child custody matter, we encourage you to contact
an Asheville family law attorney at our firm to request an initial consultation.
We serve clients in Asheville, Hendersonville, Waynesville, Marshall and
throughout all of Western North Carolina.