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The Essentials of Child Custody in North Carolina

 

Child CustodyThe most difficult time for a family is during divorce or separation. Not only is it traumatizing to the couple but also it affects their children.   Several issues follow a divorce or separation. Such issues include child support, alimony, post separation support, and equitable distribution of property among others.

In the above examples, one of the most difficult for families in North Carolina is child custody. Child custody is difficult because it impacts the children in ways that can be far-reaching, especially if the parents have lots of conflict between them.   Therefore, the goal of parents should be to reduce conflict and reach an agreement that is best for the children..  However, what happens when parents cannot agree what is best for their children?

Absent a court order or written agreement in North Carolina, both the parents have equal rights to the custody of the child.    The law in North Carolina does not have a predisposition towards the mother or the father in child custody cases. Third party such as grandparents and other relatives can also have the right to the custody of a child in certain situations.

In North Carolina, the law of “best interest” applies to child custody cases.   The best interest of the child is, in the words of a famous child custody case from North Carolina, the “guiding star” upon which courts make child custody decisions.

There are two types of custody that courts makes decisions about: legal custody and physical custody.   Legal custody is about who makes decisions.  Physical custody is about the schedule of time with each parent.  These kinds of custody may be shared in various ways.  For example, one parent might have sole physical and legal custody and the other parent have visitation.  The parents might share joint legal custody and one parent has primary physical custody and the other parent has visitation

Child custody can be a matter of agreement between the parties. In such cases, they will sign a document settling child custody. However, in cases where they can not agree, the parents may go to mediation and court to resolve their differences.

In mediation a third person who is neutral comes in to try to facilitate an agreement between the two parties.  The mediator does not make any decisions; the mediator simply helps the parties get to a settlement.    Mediation is often less expensive and less time-consuming than litigation in court.

May the child decide whom he or she lives with?   In North Carolina, the answer is no.  However, the court may decide to consider the wishes of children if they are of an age where they can honestly express their preferences.

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Scott Allen is a divorce attorney in Raleigh, NC with over eighteen years of experience in all areas of family law litigation and settlement.

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The Child Custody Evaluation in Wake County, North Carolina

Raleigh Child Custody Evaluation

Raleigh Child Custody and Wake County Child Custody Evaluations

A child custody evaluation is a valuable tool in contested Raleigh child custody cases in North Carolina.  In this article I will explore some of the frequent questions I get about the custody evaluation over my years of practice in the Wake County family court in Raleigh, NC and other counties around North Carolina.

What is a child custody evaluation?  

Generally speaking, a child custody evaluation is a forensic examination of the children and parents by a qualified person.  The evaluation report will present the information gathered, an interpretation of the information, and make recommendations for the family.  The recommendations may include, for example, custodial schedule, suggestions about communication, and the need, if any, for individual and family counseling.

What is the purpose of the child custody evaluation in North Carolina courts?

As with any expert witness, the purpose of an expert is to assist the district court judge hearing the child custody case in making a fair and fully informed custody decision.  A child custody evaluation, no matter what the recommendations are, is not a replacement for the final judgment of the court.  The trial court may elect to use the recommendations; however, there is no requirement for the judge to do so.  The district court judge also has the choice to place little credibility in the evaluator’s opinion.

When can a child custody evaluation help?

I believe they can help in any Raleigh child custody or NC custody case that is being litigated because when the parents can’t agree and a judge must decide, the kind of information provided by the report almost always helps the court make a decision.

When can a child custody evaluation hurt?

On an individual basis, it would not be wise for a party who has psychological problems and parenting issues to request a child custody evaluation because these problems are likely to be highlighted in the experts’ report.  Of course, this sets up the tension between a parent’s individual desires for a particular custodial arrangement and what is truly in the best interest of the child.

A forensic child custody evaluation should be considered in any high-conflict case and in cases where there are suspicions of substance abuse, sexual abuse, or other similar factual situations.  The American Psychological Association has published guidelines that are useful.

What are the other downsides to a custody evaluation? 

They are expensive and they add several months to the custody litigation process.  In Raleigh child custody cases an expert may cost between $4,000 and $12,000.  the cost can vary by location because different experts frequently serve different areas of the sate.   There is a range that experts in the field charge and the number of children and complexity of the case all go into the wide range of possible costs.   The other obvious issue is how long the process takes.  The expert not only has to do interviews of the parents and children, but performs psychological testing, reviews of relevant documents, and interviews collateral witnesses.

 

  

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Should I Settle My Raleigh Custody Case?

Child Custody in NC

Raleigh Child Custody Attorney Scott Allen on Settling Child Custody

Child custody decisions are often the most difficult part of any divorce.  I get asked this question all the time:  ”Scott, should I settle my child custody case?” I always say yes, settle child custody  if you can.

Why you should try to settle your Raleigh child custody case.

It is best for child custody cases to settle.  Whether you have a North Carolina child custody case or you are in another state, take my word for it:  you really should want to settle your child custody case.

I would not wish a child custody case on my worst enemy (I don’t think I have any enemies, but if I had one I wouldn’t wish it on him or her).  Why?  Because child custody cases stink.  They mess up children, they mess up relationships, and they cost a lot of emotional and financial resources.

Focus on the Best Interest of the Child.

Parents should look beyond their personal feelings and look at what their children need and work together as parents to help their children.  The “best interest” standard is the same concept the district court judge considers in a child custody case.  If both parents focused on their children’s needs rather than the parents wants or desires, the children would always be better off.

Invariably, I say these things and I hear the following: “Scott, I would settle if he/she would just be reasonable” or “what he/she is suggesting for custody is not good for the kids.”  I try to then point out that the other parent is likely saying the same thing to his/her lawyer about you.  That usually does not go over well, but I encourage my clients to see the world from the other parent’s point of view.

Can every Raleigh child custody case be settled?

I try to get parents to see the value in working out their custody issues.  Nonetheless, they sometimes don’t or won’t settle.  However, not every case can be settled because sometimes the parents’ views are simply irreconcilable, and a judge must make a decision.  Additionally, some parents engage in parental alienation. Some clients do listen to my advice and try to settle but their spouses or ex-spouses are not listening to their attorneys.  Sometimes a parent has a substance abuse problem or some psychological problem that makes settlement impossible.

Who should I call if I need help with a Raleigh child custody case?

As I write elsewhere, you should talk to at least two different Raleigh divorce lawyers before you decide upon who to hire.  If you want to talk to me about your case and possible representation, call me at (919) 863-4183 or email at sallen@allenspence.com.

 

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Parent Coordinator in Child Custody Cases

Parent CoordinatorA district court judge in North Carolina may appoint a parenting coordinator in child custody cases.  A parent coordinator is a person designated by the court and assigned to the case to reduce conflict between the parents for the welfare of the children in high conflict child custody cases in Wake County and other counties in North Carolina.
The parent coordinator may be appointed to  identify disputed issues, reduce misunderstandings, explore compromise, clarify priorities, develop methods of collaboration in parenting, and ensure compliance with the court’s custody order.  At any time in a child custody case the district court judge may appoint a parent coordinator if all the parties agree and consent to the appointment.  Furthermore, the court may appoint a parenting coordinator without the consent of the parties upon entry of a custody order if the court finds that:
  • The action is a high-conflict case and the appointment is in the best interest of the child or children.
  • The parties are able to pay the cost of the coordinator.
  • The appointment order must specify the issues the coordinator is to assist the parties in resolving and may incorporate any agreement made by the parties as to the coordinator’s role.
A high-conflict custody case is one where the district court judge finds that the parties demonstrate an ongoing pattern of excessive litigation, anger and distrust, verbal abuse, physical aggression or threats of physical aggression, communication issues regarding the children or other conditions that the court determines warrant the appointment of a parenting coordinator.
In North Carolina the district court maintains a list of qualified parenting coordinators. To be eligible, the person must meet the following requirements:
  • Hold a master’s degree in psychology, law, social work, counseling, medicine, or a related subject area.
  • Have at least five years of related professional experience.
  • Hold a current license in the parent coordinator’s area of practice.
  • Complete the required training in topics related to the developmental stages of children, the dynamics of high-conflict families, stages and effects of divorce, problem solving techniques, mediation and legal issues.
  • To remain eligible, the person must also attend parent coordinator seminars providing continuing education, group discussion, peer review, and support.

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Raleigh divorce lawyer Scott Allen is a designated parent coordinator in Wake County.  He also handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  


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Modification of Child Custody in North Carolina

North Carolina law allows for the modification of a child custody order under certain circumstances.   This article explores the  law and the circumstances allowing the trial court to modify a custody order.

This article assumes that a North Carolina custody order is in place.  A separation agreement that has not been incorporated is not a court order.  A parenting agreement or consent order that has been signed by the parents and the judge is a court order.  An order of a different state that has been registered to allow modification is also the kind of order that can be modified.

Recall that if a judge hears a child custody case where there is no order in place or there is only a temporary order, the legal standard in North Carolina is the best interest of the child.

In a modification proceeding there are actually two legal hurdles before a court may change the order.  G.S. § 50-13.7(a) allows an child custody modification “at any time, upon a motion in the cause and a showing of changed circumstances,” except as otherwise provided in G.S. § 50-13.7A.  (50-13.7A deals with certain situations where a parent is in military service).

The best interest of the child is not considered until there has been a showing of a substantial change affecting the child.    The district court judge must find a substantial change of circumstances before it can change an existing order.

The party seeking modification has burden of showing changed circumstances. However, after there has been a showing of a substantial change affecting the child, neither party has a burden of proof on the question of best interest.

There is no statutory amount of time that must pass before a motion to modify may be filed as long as the person filing the motion can meet their burden and prove a substantial change of circumstances.

So what kinds of circumstances may the court consider?  It is not possible to make an exhaustive list but the basic rules are:

  • The change of circumstances must be substantial;
  • The district court judge must consider changes that have salutary effects upon the child and those which will have adverse effects upon the child;
  • Speculative evidence that a substantial change may occur sometime in the future will not support a change in custody.
  • The evidence must demonstrate a connection between the substantial change in circumstances and the welfare of the child.

Raleigh family law attorney Scott Allen handles child custody cases every day  and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.

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