Family Law

How do Judges Decide Child Custody in North Carolina

By Melissa Heinig, Attorney
Learn more about how a judge decides legal custody, physical custody, and parenting time in North Carolina.

Custody and parenting time are two very difficult topics that divorcing parents must discuss. Parents should do their best to communicate their preference to each other for legal custody, physical custody, and visitation. If parents can’t agree, a judge will decide based on what’s in the child’s best interests.

What Is Custody?

In North Carolina, there are two parts to custody: legal custody and physical custody.

Legal Custody

Parents with legal custody have the right to make decisions regarding their child’s education, health, and general welfare. Some common issues that may arise during a legal custody dispute may include:

  • the child’s residence
  • major medical decisions, like surgery or braces
  • where the child will attend school, and
  • what religion the child will practice.

The court may award sole (one parent) or joint (both parents) legal custody depending on what will promote the child’s best interest and welfare. Joint legal custody is common in North Carolina, which means both parents will have a right to take part in decisions on major issues that impact the child’s life. When situations come up, parents should do their best to decide together, but if parents simply can’t agree after trying to work out their differences, each parent will need to present their argument to a judge and ultimately, the judge will make the decision.

If the court awards sole legal custody, the primary parent can make all major decisions about the child’s welfare without consulting the other parent. It’s important to understand that an award of sole legal custody is less common, and generally only happens in cases where there is a history of domestic violence, child abuse, drug or alcohol abuse, or neglect.

Physical Custody

Physical custody generally refers to the parent’s time with the child and includes where the child will live and which parent will be responsible for the child’s daily needs. Like legal custody, the court can award sole or joint physical custody. Regardless of the custody award, both parents have a right to make day-to-day decisions about the child while they are caring for the child.

If a judge awards one parent sole physical custody, it means that the child will reside with that parent (called the custodial parent) for most of the year, and the other parent will have visitation rights with the child.

An award of joint physical custody means that the child will spend an equal amount of time with each parent. Although the court may grant joint physical custody, it may also specify that one parent is the primary custodial parent, dictate one parent’s home as the child’s primary residence, or allocate specific responsibilities to each parent.

What Is Parenting Time?

If a court awards one parent sole physical custody, the next step is to determine a parenting time (visitation) schedule for the noncustodial parent and the child. Children need both parents, so parenting time is as important for the child as it is for the noncustodial parent. Families should work together to determine a schedule that will work best for everyone, especially the child. Both parents should consider their work schedules, the child’s school schedule, extracurricular activities, and other social obligations. When creating a calendar for your family, together, you should consider:

  • Holidays and school breaks
  • mid-week and weekend visitation
  • pick-up and drop-off locations and responsibilities, and
  • who will pay for transportation costs.

If parents can’t agree, a judge will create a visitation schedule based on the child’s age and school schedules as well as the parents’ work schedules.

Electronic Communication

In today’s busy world, setting up an in-person visitation schedule may be difficult for some parents. With the advances in digital communication, North Carolina courts recognize other ways for parents and children to spend time together, such as text messaging, e-mail, instant messaging, telephone calls, or video conferencing. Before a judge can order this, it must consider:

  • whether the electronic communication is best for the child
  • whether equipment to communicate, such as a cell phone or laptop, is available, accessible, and affordable to both parents
  • any other factor that the court believes is important.

A judge may set guidelines, such as hours parents can communicate, who will pay for costs for equipment and services and sharing of log-in information and passwords. If there is a history of parental alienation, abuse, or neglect, the court may require that all electronic communication be supervised by a third-party.

How Does the Court Determine Custody?

It’s a myth that courts have complete control of custody arrangements. Courts agree that parents usually know what’s best for their family, so it will generally approve a custody agreement created by parents. If parents can’t agree on custody, a judge will evaluate each of the following general factors:

  • the child’s preference, if they are old enough
  • how much time each parent has spent with the child
  • each parent’s stability
  • any history of drug or alcohol abuse by either parent, and
  • any history of domestic violence, or child abuse by either parent.

Courts will sometimes offer some parents a process called child custody mediation if they can’t agree. Mediation is a process where parents meet with a neutral third-party who will help direct the conversation between parents to try and help them agree. If mediation isn’t an option or doesn’t work, parents will participate in a custody trial.

During the custody hearing, each parent will have the opportunity to present evidence to show why a judge should favor them in each factor listed above. An example of the type of evidence commonly used during custody trials may include:

  • social media posts
  • emails and text messages
  • phone records
  • witnesses, and
  • school and medical records.

Once the court makes its decision about custody arrangements and creates a parenting plan, both parents must follow it. If either parent wants to change the arrangement later, that parent will need to prove there has been a change of circumstances and that modification of the custody agreement is best for the child.

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