Child custody issues can be one of the more stressful topics when discussing divorce. In an ideal situation, both parties will work to come to a friendly agreement that puts the child or children first. Unfortunately, this is not always how things work out, often leaving the decision to the courts. The attorneys at Averett Family law represent clients in custody cases in Orange and Chatham Counties.
The Best Interest of the Child
How does the court decide who gets custody of my child (children)?
If parents cannot come to a custody agreement themselves or using a mediator, the court will determine what custody schedule or arrangement will be in the best interest of the child. The challenge here is that “best interest” is not defined in any North Carolina statute. The court will consider all the relevant factors, for example:
- Is one parent more mature or does he or she have more parenting resources than the other parent?
- Who has been the primary caregiver during the relationship?
- Who will take care of the child if the child has to stay home from school on a sick day?
- Who takes the child to the doctor and attends parent/teacher conferences?
- Which parent has family support to pitch in during emergencies?
- Who helps the child with homework or coaches their baseball team?
In general, unless abuse is involved, the court will favor parents who cooperate with the other parent and foster a healthy relationship with the other parent, as opposed to constant arguments.
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Types of Custody
There are two kinds of custody, physical custody and legal custody. Legal custody refers to the power to make major parenting decisions about the child(ren), such as their medical care, where they go to school, which sport teams they join, etc. Physical custody refers to the custodial schedule, or when each parent or guardian will spend time with the child.
North Carolina custody statutes do not define “joint custody,” but, joint legal custody means both parents have equal rights to make major decisions. With regards to the custody schedule, joint custody does not necessarily mean an equal 50/50 schedule. Visitation is a form of custody. If the child lives with you most of the time, typically called primary physical custody, and visits the other parent every other weekend, for example, you and the other parent have joint custody.
Sole custody refers to the child living with one parent and the other parent has no visitation and no rights to make major decisions about the child. This custody arrangement is common when one parent is deemed unfit.
Split custody means that there are at least two children, with one (or more) child living with one parent and the other child(ren) living with the other parent.
What If My Child Was Abused?
Custody cases typically fall into two categories, best interest cases and abuse cases. Abuse cases are custody cases in which one or both of the parents are being accused of domestic violence, child abuse, substance abuse, or mental health issues.
In abuse cases where there are serious allegations that one (or both) parents are unfit, the case centers around whether the allegations are true and if the parent is a danger to the child. If the court finds that a parent is a danger to the child, then custody is going to be limited, and there are going to be safety measures, such as drug testing, supervised visitation, mandatory therapy, etc. If the allegations are not true, or if the court decides that allegations, while true, do not rise to the level that the child is in danger, for example, the domestic violence happened years ago, or the parent is now sober, etc., then the case becomes a best interest case. If there are allegations of abuse, we strongly recommend you hire a family law attorney to protect your rights and those of your child(ren).
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