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Montgomery Family Law
Divorce & Family Law

North Carolina Child Custody Laws

Typically, the breakup of a marriage is more traumatic for the children of the marriage than for the parents. Thus, parents should exercise great care when a separation takes place.

Child Custody Mediation in North Carolina

When a child's parents separate, decisions regarding the care and support of the child must be made. If the parents are not able to resolve the issues of custody, visitation, or child support, a judge will. North Carolina law directs District Court judges to protect children until they reach majority (usually age 18) by determining what is best for the child when parents cannot agree or when either parent submits the issue to a court. Generally, the child and the parents will be better served by putting the child's welfare first and trying to decide what is best by agreement rather than by litigation. A child should never be used by a parent for revenge -- the child's needs and interests should come first.

In an effort to avoid litigation, each county mandates state-supported mediation to facilitate decision-making by the parents. However, when parents either cannot or will not agree between themselves, the legal system authorizes a District Court judge to decide who should have custody, how much visitation the non-custodial parent will have, and how much child support the non-custodial parent will pay.

Litigation may be expensive, with both parties usually represented by an attorney. Litigation means the parents give up control over decision-making that has an enormous impact on their child. No judge can ever know as much about the needs of a child as the parents do. And since litigation usually ends with both parties feeling bitter and unhappy about the results, use of the courts to resolve issues of custody and support should be a last resort when there is no other way.

North Carolina Child Custody Trial Proceedings

During a custody trial, the judge considers certain facts and issues to determine the best interests and welfare of the child, the guiding principle in deciding who is awarded legal custody. Here are some guidelines:

  • What is the child's age?
  • Who assumed primary responsibility in caring for the child during the marriage?
  • Who would feed, bathe, clothe, and teach the child during the week?
  • What is the work schedule of each parent who works outside the home?
  • What is the physical, emotional, and parenting ability of each parent?
  • With whom is the child bonded psychologically?
  • Is either parent trying to prevent the child from continuing a relationship with the other parent?
  • Is either parent trying to use the child just to hurt the other parent?
  • Is either parent really unfit, unwilling, or unable to properly and appropriately raise the child?

There is no legal presumption for either the mother or the father as the custodial parent. The only question is the welfare of the child.

Child Custody in North Carolina - Legal & Physical Custody

In North Carolina, the statutory law does not well define the terms "legal custody" and "physical custody." Child custody, whether sole custody or joint custody, is "legal" (in a common language usage of the word) if it is part of a valid written and properly executed custody agreement or if it is part of a child custody order.

Having "legal" custody of a child through a properly executed custody agreement or child custody court order must be distinguished from the specific technical definitions of "legal custody" and "physical custody" according to interpretation of the applicable North Carolina General Statutes and relevant case law.

"Legal custody" and "physical custody" in the technical sense describe two different aspects of custodial rights that the parents might share or, alternatively, could be granted to only one of the parents though a custody agreement or custody court order.  "Legal custody," as specified within the actual custody agreement or custody order, typically refers to the right to make major decisions affecting the child's life. "Physical custody," as also separetely specified within the custody agreement or custody order, refers to the phyical care and supervision of the child. Thus, a parent can have legally protected custodial rights through a child custody agreement or court order which specifies for each parent the "legal custody" (i.e., decision making authority for the child) and "physical custody" (i.e., physical care and superversion of the child) rights of each parent.

Orders may be entered by agreement, i.e., without a trial. Even if a lawsuit has been filed, the two parties may agree and ask the court to approve their agreement. The agreement almost always will be approved; the result is called a consent order, which can be enforced by the court.

The form of your custody determination -- strictly agreement or order -- may make some difference. Each is enforced differently and treated differently if a change in custody or visitation needs to be made in the future. You should consult an attorney about what is best for you and your child.

Child Custody and Visitation

It is common for parents to be granted joint custody of a child, meaning the each parent has equal physical custody time with the child, as well as equal decision making authority for major decisions affecting the child's life.

However, sometimes it is in the best interest of the child that one parent be granted primary custody of the child. When one parent is granted primary custody of a child, the other parent usually is granted visitation privileges with the child. Except in extraordinary circumstances, it is healthy and desirable for the child to have regular contact with the non-custodial parent. 

Two visitation options are:

1) Reasonable Visitation. There is no set time for child visitation, rather it will be subject to agreement between the parents. Although it provides flexibility, it will not work unless the parents can agree on what visitation is "reasonable."

2) Structured Visitation. There is a schedule for child visitation that may include visitation every other weekend from Friday evening through Sunday evening, alternating holidays through the year, and several weeks during summer vacation. Schedules may also include: overnights during the week, weekend visits, telephone calls, video calls, sharing of holidays, and school vacations.

Until the parents execute a written separation agreement with provisions for custody or a court grants custody to one parent, both parents have equal rights regarding their child. This does not, however, give one parent a right to take the child from the other. 

Whether the judge enters an order for equal 50/50 shared custody time (or, alternatively, grants primary physical custody to one parent and visitation to the other parent) depends on a myriad of factors. The type of child custody and visitation schedule depends on conditions such as the living arrangements of the parties, the ages of the children, how far apart the parents live, the desires of older children, and whether there has been domestic violence or child abuse. 

Joint custody can, of course, be beneficial for the child if the parents are interested in and capable of working together for the child's best interests and welfare. On the other hand, it can be disastrous if one parent is bent on obstructing or undermining the other parent or the child.

Child Custody and Child Support

A separation agreement may allow credit, reducing the child support, if the child spends a relatively long period of visitation (three or four weeks) with the supporting parent. All North Carolina courts use guidelines that take into account extended time with the non-custodial parent.

Some parents with custody refuse to allow visitation when support is not paid, or a parent will withhold child support when not able to see a child. Under North Carolina law, visitation and child support are not related; neither parent has the right to withhold support or visitation. Instead, the aggrieved parent must seek help from the court.

Both parents have a duty to support his or her children. North Carolina has adopted child support guidelines that apply to all cases and are based upon the income of both parents, the type of custodial arrangement that exists, and factors such as day care and health insurance costs. Forms for determining the amount of support can be obtained from the Administrative Office of the Courts.

Your child will benefit if matters of custody, visitation, and support can be determined amicably. When that is not possible, either parent or anyone seeking custody may petition the court to decide. Custody, visitation, and support issues are not concluded until the child reaches majority. An agreement or court order may be changed if the circumstances warrant. For custody and visitation, majority occurs when the child reaches his or her 18th birthday. For child support, it may continue until the child graduates from high school or reaches his or her 20th birthday, whichever occurs first. If the support has been agreed to by the parents, it is not uncommon to make provisions for financial assistance for children who may go on to college.

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The contents of this web site relate only to North Carolina Law. Charles H. Montgomery and Scott Montgomery are licensed to practice only in the State of North Carolina. Charles H. Montgomery is a Certified Specialist in Family Law. Certification as a Specialist in Family Law is regulated by the North Carolina State Bar. Montgomery Family Law is located in Cary, North Carolina. Montgomery Family Law does not seek to represent you based upon your visit or review of this website.

The materials included on this website are not intended as legal advice. Readers should not act upon information contained in this website without professional legal counseling.

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