Family Law

Child Custody

Try and remember that children take their cues from their parents, so if you and your spouse can remain amicable throughout this process, your children will weather the storm.

The first thing on your mind when going through a divorce may be, “What will happen to my children?” Custody actions in North Carolina are determined by deciding what is in the children’s best interest. (See NC Gen. Stat. Sec 50-13.2). There are no rules for us or a court to follow – every parenting arrangement varies. Deciding on a parenting arrangement is often the most difficult and emotional part of a divorce. Try and remember that children take their cues from their parents, so if you and your spouse can remain amicable throughout this process, your children will weather the storm. There are some excellent materials out there that can better help you and your children navigate this process. Each parenting arrangement is different and must be tailored to suit the specific needs of your newly restructured family. That said, there are some basic terms and pointers that you need to be familiar with.

The first thing you must do is throw out everything your friends and family have told you about their experiences and their personal parenting schedules. Then you have to stop using common, but incorrect, terms. Many parents, when faced with a child custody issue, get caught up in the terms “sole” and “joint” custody. Don’t get attached to these words; doing so will only fuel a fire.

You May Be Wondering...

Q & A

What is sole custody?
Sole custody means many different things to many different people, none of which are usually right. Sole custody actually means that only one parent has legal custody and primary residential custody. Legal custody means the right to make decisions for your children without the agreement of the other parent or over their objection. Residential custody means where your child actually spends their nights. When one parent has sole custody, the other parent typically has limited visitation (courts mostly now call this parenting time). Sole custody is awarded rarely, and only in cases where the other parent is truly incapable of caring for the child. If you think sole custody is the best parenting arrangement in your case, carefully walk through all of those reasons with your attorney; going through a case with the wrong expectations can make for a very long and expensive year or two.

What is joint custody?
Joint custody is much harder to define because it includes many different timesharing arrangements and changes from family to family. At its most basic level, joint custody means parents make joint decisions for their children and share their time in such a way that one parent does not have primary caregiving responsibility. The actual residential custody schedules can take many different formats and can be customized to best fit your family. Examples of these include week on week off, a 10‑4 or 8-6 arrangement. It’s important to know that lawyers and other professionals look at parenting time in 14‑day blocks and allocate days to each parent within those 14 days. For example, a standard 10‑4 gives one parent 10 days out of the 14 and one parent 4 days out of the 14, whereas a 9‑5 or an 8‑6 splits them up differently. Click here to see all of these parenting schedule examples.

Who makes the parenting schedule?
One of our client’s most frequent questions is, “Who decides what the parenting arrangement is going to be?” Generally, child custody issues are decided either by the agreement of the parties (certainly the preferred method) or by a judge following a lengthy and expensive process. 

In an amicable divorce, parents work with lawyers and/or mediators to jointly craft a parenting arrangement that works best for their restructured family. Absent domestic violence or substance abuse issues, it’s almost always better for you and your spouse (no matter how much you might not like them at the moment) to decide what is best for your children. When asking a judge to decide, you’re asking a complete stranger to decide on a limited set of facts (because of the rules of evidence we don’t get to tell them everything we would like to) what arrangement is best. With limited time and limited information, it’s impossible for a judge to know what is best for your children. Many times, the judge makes a decision that on its face looks like what it is best for the family when in reality it leads to constant problems and repeated court appearances.

We encourage you to use our collaborative, mediation and coaching services to avoid dragging your children through court.

What rules can be included in our parenting agreement?
When resolving custody issues by agreement, you can address any other issues you find important. Often we include provisions addressing the following issues in our agreements: new dating partners, re-marriage, relocation, alcohol use, discipline, child-care providers and communication with the other parent. The freedom to include as many, or as few, provisions as you like is another advantage of an out-of-court resolution. Judges can only address certain limited issues in dictating a custodial arrangement.

When can my child decide where they want to live?
See our video answer.

It’s a common misconception that there’s some magic age where children can decide for themselves where they want to live and with which parent they want to live. There is no such age. Although a court can consider the wishes of a child of suitable age and discretion, the child’s wishes will never be the sole deciding factor. A judge still must be guided by the best interest of the child standard and must consider the totality of the circumstances before making any change to a parenting arrangement.

What if things change?
Changing a custodial arrangement can be tricky and the process depends on whether your current arrangement is in an agreement or a court order. If your custodial arrangement is in a court order, you must demonstrate that there has been a substantial change in circumstances affecting your child. Once you jump that hurdle, the court once again is guided by the best interest of the child standard. (See NC Gen. Stat. Sec 50-13.7) If your custodial provisions are in a Separation Agreement, you might need to file a new lawsuit for child custody.  Obviously this can get you started down a long and expensive path.  Please reach out to us so we can help you evaluate your options.

What is a parenting coordinator and do I need one?
See our video answer.

A parenting coordinator is an impartial third party that works with parents to make transitioning to the restructured family easier and less adversarial. A parenting coordinator can be retained to assist families in an amicable divorce or they can be court appointed to assist a family in a high-conflict divorce. For purposes of court actions, high-conflict is defined as cases where the parents demonstrate an ongoing pattern of any of the following:

  • Excessive litigation
  • Anger and distrust
  • Verbal abuse
  • Physical aggression or threats of physical aggression
  • Difficulty communicating about the care of the children
  • Other issues that the court finds requires the services of a parenting coordinator  (See NC Gen. Stat. Sec 50-90)

Regardless of the level of conflict in your case; having an impartial neutral to help guide you and your spouse through the child custody process can help you both remained focused on your primary goal: the happiness and well-being of your children. (Kary Church Watson works as a Coordinator and finds her work with parents to be the most rewarding part of her practice. For an overview of Kary’s services and fees, click here.)

What is a guardian ad litem and do I need one?
A Guardian Ad Litem (GAL) is a person who is appointed to investigate the needs and best interest of a child and to represent the child’s interest in a court proceeding. A GAL is a voice for your child in a contested custody case. GALs are appointed in high-conflict cases and cases involving allegations of verbal and physical abuse and substance abuse by one or both parents. If you have questions about whether a GAL is appropriate for your situation, please contact Church Watson Law for a consultation or coaching session

Do grandparents have rights to custody or visitation?

Whether a grandparent has rights to custody or visitation is one of the most complicated areas of family law. The rules and the procedure vary based on the status of the custodial claims between the parents. (See NC Gen. Stat. Sec 50-13.2). We strongly recommend that if you have questions about the rights of grandparents that you schedule a consult with us before moving forward.

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