Child Custody Attorneys in Cary, NC

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. For assistance with a child custody dispute in Cary, Raleigh, or anywhere in Wake County, talk to our child custody lawyers at Montgomery Family Law.

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, mediation is required to expedite decision-making by the parents. If parents cannot agree between themselves, a District Court judge will decide who should have custody, how much visitation a non-custodial parent will have, and amount of child support the non-custodial parent will pay.

North Carolina Child Custody Trial Proceedings

When deciding on custody matters, the judge considers basis his or her decision on the best interests and welfare of the child:

• 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 using the child just to hurt the other parent?
• Is either parent preventing the child from continuing a relationship with the other parent?
• Is either parent unfit, unwilling, or unable to raise the child?

Courts do not favor the mother or the father as the custodial parent. The only concern 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," refers to the right to make major decisions affecting the child's life. "Physical custody," refers to the physical care and supervision of the child. This means that a parent can have custodial rights 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 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.

Child Custody and Visitation

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 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:

• Reasonable Visitation. There is no set time for visitation. This is subject to an agreement to be decided by the parents.
• 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 custodial parents may refuse to allow visitation when support is not paid, or a parent will withhold child support when he or she is allowed to see a child by the parent. Neither parent has the right to withhold support or visitation. Only a court can enforce such order.

Child support may continue until the child completes high school or reaches his or her 20th birthday. 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.

Call us at (919) 348-2317 to discuss your custody and support matters.