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 their 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 proceedings 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. 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. However, this presumption no longer applies in North Carolina. A popular misconception is 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.
Child Custody FAQs
North Carolina Child Custody Law Resources
What Is The Difference Between Custody, Timesharing And Visitation?
In the context of North Carolina divorce law, three terms — custody, timesharing, and visitation — are often used interchangeably and have overlapping meanings: each refers to the legal rights and responsibilities of parents after divorce. Custody is an older term that is still used in reference to parental rights by divorce attorneys. North Carolina courts, however, have largely phased out the term custody and instead use timesharing and visitation, which reference specific types of parental rights.
Do I Need A Lawyer To Determine Child Custody?
Though a lawyer is not required to determine child custody, cases can quickly become complex, as well as contentious and emotional. An experienced child custody lawyer in North Carolina can simplify the process. By negotiating on your behalf, a divorce attorney can reduce your stress level and advocate for your preferred timesharing or visitation plan.
What Is A Parenting Plan?
A parenting plan is a document that governs the relationship that each parent will have with a child after divorce. The document is developed and agreed to by both parents, unless there is an impasse, in which case the court issues its own plan. A parenting plan encompasses custody matters such as timesharing, parental responsibility, and visitation, as well as specific issues such as the child’s healthcare and education.
What Is Timesharing?
Timesharing is a standalone element of a parenting plan that outlines how much time each spouse can spend with the child, as well as under which circumstances. If parents fail to agree on timesharing, the court can impose its own agreement based on a judge’s interpretation of the child’s best interest. The terms “custody” and “visitation” remain primary terms when talking about time sharing in North Carolina.
How Do I Get Sole Custody Of My Children?
Courts consider the best interests of the children when deciding custody. Among the factors North Carolina judges look at are the physical safety of the child and the conditions of the parents. In situations where one parent is unfit (e.g., drug use or evidence of child abuse) the other parent can be awarded sole custody. However, these arrangements are rare in North Carolina — more common is joint custody.
Do I Have To Share Custody Of My Child?
In all but the rarest of situations, divorced parents share custody of a child. A typical North Carolina divorce with children concludes in a joint custody agreement. Spouses can either divide the parental responsibilities evenly or one parent can assume sole physical custody while the other has visitation rights. Grandparent visitation rights can also be awarded by the courts under North Carolina law.
If I Move Out And Leave My Children With Their Other Parent, Will I Be Denied Custody Later?
You may have a justifiable reason to leave your spouse — perhaps the situation was unpleasant or even dangerous. However, moving out without the children can seem like abandonment and send a message to the court that the other spouse is better suited to be the primary caretaker of the kids. Judges consider stability to be an essential factor when determining the best interests of children. If you find it necessary to move out, a temporary order can be one way to resolve issues of child custody, spousal support, and even asset distribution in the short term. Talking to a family law attorney from The Van Winkle Law Firm before moving out can help you make the right decision for your interests. Furthermore, if you previously accepted a custody agreement that you now want to change, a divorce lawyer can also help you pursue a custody modification in North Carolina.
Are Mothers More Likely Than Fathers To Be Awarded Custody?
Some people have preconceived notions that judges favor mothers when awarding custody rights. This can be true for particular judges, though not always. In today’s courts, gender is not used to decide custody. Instead, judges consider which parent primarily cared for the child while the couple was married. Increasingly, as more women work and men stay at home, which gender has the advantage in custody decisions is shifting towards an equal proportion.
Is Mediation The Best Approach To Solving Disagreements About Child Custody?
Mediation works for resolving disputes between two parents who are willing to find common ground. During mediation, each side can have representation by a divorce attorney. The communication is less hostile than open and cooperative, and the goal is to create a parenting plan that suits both spouses as well as the child. However, if there is a chasm of disagreement separating the two parties, not all the issues in question may be resolvable through mediation. As a result, a court trial is necessary to complete the divorce, and a judge will make the determinations regarding child custody.
Is Race An Issue In Custody Or Visitation Decisions?
Judges make custody decisions based on the best interest of the child. The race of a parent is not a factor in the court’s decision. That said, all humans have biases that influence their decisions. However, judges earn their positions on the bench by consistently demonstrating their professionalism and objectivity before the law. However, if you are skeptical about an upcoming divorce hearing, you can hire an attorney to prepare and argue your case.
Who Determines How Much Visitation Is Reasonable And Fair?
Parents have the opportunity to work out a timesharing agreement. If the two sides cannot reach an amicable resolution, the matter may wind up in court, where a judge will determine the custody or visitation rights of each parent according to what is in the best interest of the child.
What Is A "Primary Caretaker"?
In North Carolina family law, a primary caretaker (also called a custodial parent) is the parent after a divorce who retains the greatest responsibility for the child’s care. Typically, this is the same parent who devoted the most time and effort to raising the child during the marriage. A primary caretaker may have either sole custody of the child or joint custody with a non-custodial spouse who has some visitation rights.
Can I Get Custody Of My Child If I Never Married The Mother?
An unwed mother is designated as the primary caretaker under North Carolina law. If the mother has a history of drug use, child abuse, or other behavior that could cause her to be deemed unfit for parenting by a court, the father could be awarded custody. An unmarried couple may also work out a parenting plan between them concerning child custody and visitations.
What Is The Main Difference Between "Physical" And "Legal" Custody Of Child?
Legal custody refers to a parent’s right and responsibility to make decisions that affect a child’s welfare, including matters of health care, education, and physical and emotional development. Physical custody is the right of a parent to provide the residence and supervision for a child, while the other parent has more limited visitation rights.
I Am A Single Mother Who Never Married My Child’s Father. Does He Have Legal Rights To Custody?
According to North Carolina child custody law, a single mother is considered the primary caretaker of a child born out-of-wedlock or who has a birth certificate that does not contain a father’s name. However, when a mother is unwed but had given birth while married, the child’s father has an equal claim to custody. A judge will then decide an equitable custody arrangement based on the best interest of the child, unless the spouses first develop and agree on a parenting plan.
Can My Former Spouse And I Determine A Custody And Visitation Arrangement Without The Court?
Parents have the right to determine all matters of custody and visitation for a child. However, divorce involving children can be complicated. Even two spouses who have an amicable relationship may disagree as to the best interest of their child. Custody lawyers can help couples smooth out rough spots in parenting plans and come to an agreement without the intervention of a judge. But if no decision is reached, the matter will be referred to a court, in which case an experienced family law attorney can be instrumental in looking out for your parental rights.
Can Someone Other Than A Parent Be Awarded Custody?
Your child’s welfare may require a person other than a parent to have custody. Under North Carolina law, grandparents can receive visitation or custody rights. While this arrangement could occur because one or both parents are unfit, the parents could also just be too young or in a precarious financial situation, thus making the grandparents the better candidates to care for the child. Nuclear or extended family, as well as close acquaintances, are likewise eligible to have custody, although a court will grant the parental rights only to a candidate who has demonstrated he or she can handle the responsibility.
Do Grandparents Have A Legal Right To Visitation With Their Grandchild?
Though the privilege is not inherit by law, grandparents are usually awarded visitation rights by the courts in North Carolina. In situations where the parents are unprepared or unfit to assume responsibility for childcare, grandparents can be named primary caretakers.
Considering the complex laws and emotional realities of divorcing with children, an experienced child custody lawyer can make all the difference. To learn how attorneys in North Carolina at The Van Winkle Law Firm can look out for the integrity of your parental rights during a divorce, contact us today.