Child Custody & Visitation

One of the most difficult and important decisions parents make about is the care, custody, and control of their children. In North Carolina, Child Custody Law’s are based upon what is in the best interest of the minor child.

Parents often believe that child custody can be enforced based upon a mutually executed documents, such as a separation agreement or custody agreement. However, it is necessary to have an Order that addresses child custody. In North Carolina, it is very difficult to enforce any document or agreement that is not entered as an Order. Christopher Johnson is an experienced child custody lawyer in Wilmington NC that handles these sensitive orders.

 

In most cases, it is necessary to obtain either an order reached as a result from a child custody hearing or a consent order for child custody. If a hearing is required, the court will look at several factors. Some of the factors are, but are not limited too: comfort level in a home, relationships with surrounding friends and family, parent’s schedules, issues of domestic violence, or substance abuse by one or both.

 

Also in North Carolina, you can seek an emergency child custody order. An emergency child custody order can be granted on two grounds: immediate danger the minor child or an immediate risk of flight from the state. An example of immediate danger to the minor child might be that one parent is physically abusing the minor child. Emergency orders are issued only in extreme cases.

 

Frequently Asked Questions
  • What is the difference between physical and legal custody?Open or Close

    Legal custody has to do with decision making authority. This is typically viewed as decisions on healthcare, religion, education, and other important decisions effecting the welfare of your child. Physical custody is defined as where the minor child resides primarily.

  • What is difference between sole and joint custody?Open or Close

    These terms typically refer to a parent’s rights to make decisions regarding the child. A parent with “sole custody” not only has primary physical custody, but also has most or all of the decision-making authority. “Joint custody” generally means that each parent has some decision-making input. In a joint custody arrangement, there is often still one parent who has “primary” custody and the other parent has “secondary” custody. In actuality, however, the terms “sole custody” and “joint custody” specifically mean whatever the written custody order or agreement says they mean.

  • How can I get custody of my child in North Carolina?Open or Close

    If there is no order or agreement already in place, either parent can file a Complaint for Child Custody at any time. Once the Complaint is filed, the court will require parents to attend custody mediation to try to work out a parenting agreement. If the mediation is successful, a parenting agreement is drafted by the mediator, signed by the parties and can be submitted to the Court for entry as an order; and no litigation may be needed. However, if the parties reach an impasse and cannot agree at the mediation, their case will need to be heard before a judge.

     

    Until the parties settle, or until a court rules on custody, it is important to remember that each parent has co-equal rights to the physical possession of a child of the marriage. Unless there is some written order or agreement establishing custodial and visitation rights, the custodial arrangements are subject to being changed at the whim or desire of either parent.

  • How does the judge decide who will get custody?Open or Close

    The law says that the judge’s decision must be “in the best interest of the child." The Court will consider many things when making a determination as to what is in your child's best interest, such as:

     

    1. Will the child have a safe and appropriate place to live?
    2. Will the child be well-fed, clothed and cared for?
    3. Will the child be supervised properly?
    4. Which parent has been the primary caretaker of the child?
    5. How well has the child been doing overall in that parent’s primary care?
    6. Does either parent abuse the child?
    7. Does either parent abuse drugs or alcohol?
    8. Does either parent expose the child to domestic violence?
    9. Does either parent attempt to alienation the child from the other parent?

  • How can I improve my chances of gaining custody if I have not been a terrific parent in the past?Open or Close

    It is always difficult to admit to ourselves that we have not been the best parent or put our child first in our lives, and divorce is a tumultuous time which can disrupt our parenting abilities. If you have been an absentee parent, get more involved in your child’s life. Get to know your child's teachers, counselors, coaches and friends. Most importantly, get to know your child and make a point to visit and/or volunteer at school, attend extracurricular activities and events, and become more active in your child’s healthcare and education.

     

    If you have had substance abuse issues, get treatment and be ready to prove to the other parent and to the court that you have complied with treatment, recovering, and prepared to take on your parenting responsibilities. You can also participate in counseling—either with or without your child—and take parenting or anger management classes, if needed.

    In the meantime, be sure to be completely honest with your attorney about both your strengths and weaknesses as a parent. Prior to any legal action, you should be prepared to provide your attorney with documentation of any of the aforementioned changes in your behavior and/or treatments you have sought. Having credible evidence of the changes you have made in the best interest of your child will be your most powerful tool in a custody trial.

  • At what age does a child have the right to decide where to live?Open or Close

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  • What rights do grandparents have to custody and visitation in North Carolina?Open or Close

    Judges in North Carolina can order visitation for grandparents as part of a custody order, if the court believes it would be in the children’s best interests.

  • What if the other parent will not return the minor child? What can I do?Open or Close

    If you do not have a court order for child custody, your options are limited. The best way to resolve this issue--other than by agreement by the parties--is to seek a custody order. If however, you do have a custody order in place, you should contact an attorney immediately to discuss your options, which could include filing a motion for contempt and/ or a motion for emergency custody, depending on your circumstances.

  • If I call the police, will they return the child to me?Open or Close

    Typically the police will not get involved in a custody dispute, unless you have an order which contains specific language authorizing law enforcement officers to assist in the return of the minor children to one parent or the other.

  • How do I get emergency child custody?Open or Close

    You can file a complaint or motion for emergency custody, you can only request this if you are adamant there is danger of immediate or serious injury to you or the minor child. The emergency custody order is temporary, meaning that it only lasts until you have attended your full custody hearing in court. More often than not, an emergency order for custody requires that the judge have findings of high risk of bodily injury or sexual abuse with regard to the child.

     

    A judge can also issue an emergency order if he or she believes there is a strong likelihood that child will be adopted from the state of North Carolina. If you suspect that you may need an emergency custody order, you need to hire an attorney immediately.

  • Do I have to go to Court to get a Child Custody Order?Open or Close

    No, you do not have to go to court. Parties are often able to agree upon the specific terms of an order and enter what is called a consent order for child custody.

  • When can a child custody order be changed?Open or Close

    You can always modify a child custody order by consent. However, if you and the other parent are unable to agree on the terms, then you will have to file a motion to modify custody and be prepared to show the Court that there has been a substantial change of circumstances since the entry of the prior order, affecting the welfare of the minor child.

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