Child Custody

How to deal with the children is probably the most important issue for two parents who are separating to resolve. 

Divorcing parents are understandably concerned with a number of custodial issues such as:

–       Where will the children live?
–       How will birthdays and holidays and school vacations be split up?
–       Where will the children attend school?
–       How will educational, health, and religious decisions be made?

Courts determine child custody with “the best interest of the child” being the “polar star” that guides the court’s every decision when it comes to child custody.

Parents are usually able to avoid getting the court involved in what are fundamentally parenting decisions when they are guided by that same polar star: what’s best for our kids?

Keeping that in mind, it should hardly come as a surprise to hear that the best way to handle the issue of custody of your children is to reach an agreement with your spouse.  

If you and your spouse have worked out all of the issues, we can prepare an agreement or Consent Order you and your spouse can both sign.  If there are still things that need to be worked out, we can help you resolve those issues with your spouse through negotiation, mediation, or other alternative dispute resolution methods.  

Sometimes, however, it is not possible to reach an agreement with your spouse.  Maybe your spouse has substance abuse issues, mental health issues, or there has been domestic violence.  If resolving custody out of court is not possible, we can help you file a lawsuit for custody of your children and work with you to prepare the best case possible.

Either parent may bring a motion to modify a child custody order.  The parent filing the motion has the burden of proving that there has been a substantial change in circumstances that adversely or beneficially affects the child and that modifying the Order for custody is in the best interests of the child.  

Examples of what may qualify as a “substantial change of circumstances” include”

1.   The well-being of the child, now or in the future;
2.   The relationship between the child and the parents or other custodians;
3.   The child’s preferences for where to live;
4.   The actions, behaviors, or character of the parents or other custodians; and
5.   The child’s living environment.

It is not enough to only show that there has been a substantial change.  The parent seeking to have custody modified must also show that the changes are affecting the child- whether positively or negatively.  

It is important to know, however, that even if you are able to prove both of these things, there is still no guarantee that the court will modify custody.  The court will still need to consider a number of other factors such as:

1.   The need for stability for the child;
2.   The child’s wishes;
3.   The age of the child;
4.   Whether there has been domestic violence (either involving the other parent or the parent’s spouse or other romantic partner);
5.   The emotional and physical health of the child or parent;
6.   Whether the other parent is engaging in behavior that is interfering with your custody or is alienating or estranging your child from you;
7.   The child showing signs of stress;
8.   Whether the other parent demeans, degrades, or otherwise speaks derogatorily about you (or allows others to do so) in the presence or hearing of your child;
9.   Sexual or other forms of child abuse; or
10. Whether one parent wishes to relocate for work or other reasons.

If you currently have a court order for custody and believe it may be time to make some changes to the current custodial arrangement, please give us a call to discuss your options.  

“Legal Custody” is not defined by NC Statute, but our case law refers to legal custody as the right to make decisions with important and long-term implications for the child’s best interest and welfare. This includes the ability to make decisions regarding the child’s education, health, and religion. Legal custody can be joint, in which both parties have equal decision making authority in these areas, or the legal custody of the child could be granted to only one of the parties in some cases.

“Physical Custody” is the actual physical care of the child and who the child physically resides with.  This could also be joint or shared, or sometimes given to only one of the parties in rare cases.

It is difficult to define “winning” a child custody case, as in most instances neither of the parties will feel like they have won whether a custody case is handled amicably or within the courtroom.  The only person who “wins” or “loses” in these matters is the child, and making sure that the child is in the best environment that will help him or her to thrive mentally, physically, mentally and emotionally.  

However, when having to go through a child custody case, there are some things you can do to ensure that you put yourself in the best position to achieve the result you are looking for:

• Do not vilify or talk degradingling about the other parent to the minor children or anywhere in which the minor children may hear.  
• Try to keep all communications with the opposing party civil, short and to the point, and in writing.  
• Do not drink, smoke, or consume illegal substances, especially with the minor children present.
• Be mindful of introducing new significant others to your minor children too soon after your separation.
• Enroll in therapy to help you get through this difficult time.

Always ask your attorney if you have any concerns about any particular behavior or decision during your custody litigation.

It is possible in some circumstances for grandparents or other third parties with a substantial relationship with the child to obtain custody.  Speak with an attorney about your particular situation.