Experience
Our firm’s founder Attorney Charles Montgomery has over 40 years of proven, award-winning legal experience.
When parents go their separate ways, the experience can be more traumatic for the children than for the parents.
It is important for parents to handle their separation or divorce in a delicate manner in order to minimize the emotional impact the breakup has on a child.
Talk to our child custody lawyers at Montgomery Family Lawfor assistance with a child custody dispute in Cary, Raleigh, and throughout Wake County.
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. Access to 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, mediation is required in order to encourage decision-making by the parents.
If parents cannot agree between themselves, a District Court judge will decide who should have custody and how much visitation a non-custodial parent will have. When deciding on custody matters, the judge considers several factors in determining a resolution in best interests and welfare of the child. These factors include:
Courts do not favor either the mother or the father as the custodial parent. The only concern is the welfare of the child.
In North Carolina, the statutory law does not well define the terms "legal custody" and "physical custody." Child custody, whether sole or joint, is "legal" (or enforceable by law) if it is part of a court order or valid, written custody agreement.
This sense of having "legal" custody of a child is different from the specific technical definitions of "legal custody" and "physical custody" used when discussing the applicable statutes and relevant case law.
"Legal custody" and "physical custody" in this technical sense describe two different aspects of custodial rights that the parents might share. "Legal custody" refers to the right to make major decisions affecting the child's life. These include decisions about a child’s education, religious upbringing, and medical care. "Physical custody" refers to the physical care and supervision of the child.
This means that a parent can have both legal custody (i.e., decision making authority for the child) and physical custody (i.e., physical care and supervision of the child) as determined by a custody agreement or court order.
Orders may be entered after a hearing or 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. These agreements are almost always approved; the result is called a consent order, which can be enforced by the court.
It is common for parents to be granted joint custody of a child, meaning that 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.
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:
Until the parents execute a written custody agreement 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 time or, alternatively, grants primary physical custody to one parent and visitation to the other, depends on a myriad of factors. The type of child custody and visitation schedule depends on conditions such as:
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. On the other hand, it can be disastrous if one parent is bent on obstructing or undermining the other parent or the child.
No, state law requires custody to be determined based on what is in the best interests for the child.
The gender of the parent has no effect on custody, as each parent has equal grounds to ask for custody, visitation, or support. Keep in mind, the father must establish paternity if he wishes to ask for these same rights.
The state of North Carolina says that a child may refuse visitation once they are the legal age of 18.
When a parent cannot carry out their duties as guardian, such as providing guidance, care, or support, then they may be ruled "unfit" to care for a child. A judge may look at several factors including:
A separation agreement may allow credit to reduce 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 custodial parents may refuse to allow visitation when support is not paid, or a parent may withhold child support when he or she is not allowed to see a child by the other parent. However, neither parent has the right to withhold support or visitation—only a court has that authority.
Call us at (919) 348-2317 or fill out our online contact form to discuss your custody and support matters.
Our firm’s founder Attorney Charles Montgomery has over 40 years of proven, award-winning legal experience.
At Montgomery Family Law, each of our attorneys dedicates 100% of their law practice to family law and divorce.
Two of our attorneys are N.C. Board Certified Family Law Specialists, a certification earned by only 1% of lawyers statewide.
Known for our dedication, our firm is rated AV Preeminent® by peers, the highest rating possible for ethics and legal skill.