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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:

  1. 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.
  2. Encourage parents to take responsibility for their child by setting the expectation that parenthood will be a significant and ongoing responsibility.
  3. 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.
  4. Encourage both parents to share equitably in the rights and responsibilities of raising their child, even after dissolution of marriage or unwed relationship.
  5. 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.