Child Custody and Visitation

Custody disputes do not arise only between persons going through the separation and divorce process, but may occur between unmarried parties who have a child together, or may arise between divorced parties even when there is an existing order or agreement in place. In some cases, grandparents or other relatives may seek custody of a child under certain circumstances. Regardless of who the dispute is between, all custody disputes are governed by one overarching standard - the best interest of the child.

Emergency Custody

Emergency custody can only be obtained in limited situations: (1) when the child is exposed to a substantial risk of bodily injury or sexual abuse or (2) there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of the North Carolina courts. If an emergency order is granted by a judge, there will be a hearing in ten days to determine whether grounds for the order in fact existed, and whether the order should be continued until a temporary child custody hearing can be scheduled.

Difference Between Legal Custody and Physical Custody

Legal custody involves parental authority to make major decisions about how to raise a child, such as decisions about education, religion, and discipline. Physical custody means where the child lives. As a practical matter, most custody disputes are over whom the child should live with and what visitation schedule the child should have with the other parent.

Primary vs. Joint Custody

The distinction between primary custody and joint custody is essentially meaningless because there is no statutory definition of joint custody. A schedule where one parent has primary custody simply means that the child lives with one parent for the majority of the time, subject to the other parent's visitation schedule. Practically, a schedule where the parties have joint custody means that the child lives with both parties on a more equal basis. This issue has been confused somewhat by the child support worksheets used under the North Carolina Child Support Guidelines, which define custody schfedules by the number of overnights the child has with each parent. It is important to remember that these definitions of custody schedules are only used for purposes of child support calculations, and that in reality there is not a set number of overnights that define "primary" and "joint" custody.

Resolving Custody Disputes

Whenever possible, people should strive to resolve custody disputes between themselves, keeping in mind what is in the best interests of the child. If both parties can come to an agreement on a custody and visitation schedule, the agreement can be put into a separation agreement or executed with the court as a consent order. The parties can agree to attend settlement conferences with their attorneys or attempt private mediation to resolve custody issues before resorting to the litigation process.

In Wake County, the filing of a custody complaint triggers the local domestic rules, which will govern the resolution of the custody issue. The parents will be ordered to attend a custody orientation and mediation session at the courthouse, where they must attempt to work out a parenting agreement. Parents who fail to attend may be held in contempt of court. If the parents are unable to come to an agreement in court-ordered custody mediation, then both parents must attend a four hour parenting class. There are only two parenting classes that currently meet the required criteria in Wake County:

1) Lewis & Associates
5540 Centerview Drive, Suite 200
Raleigh, NC 27606
(919)-302-8362
http://www.drlewisassociates.com/

2) Triangle Family Services-Parents Forever
118 St. Mary's St.
Raleigh, NC 27604
(919)-821-0790 x311
http://www.tfsnc.org/

Issues that Arise in Custody Litigation:
- Parenting Coordinator

If litigation continues in a high-conflict custody case, the court may appoint a parent coordinator to assist the parties in making decisions involving the children and effectively communicating. The parent coordinator is appointed by court order, is generally paid by both parties, and answers directly to the court. The parties may agree to put court proceedings on hold and may save time and money by utilizing the services of a parent coordinator.

Custody Evaluation

Either party in a custody action can make a motion for a custody evaluation. A custody evaluation is when an objective third party, usually a licensed psychologist, is paid to do an in-depth evaluation assessing each of the parents in order to assist the court in making a custody determination.

Parental Alienation

An issue receiving increased attention in custody disputes is parental alienation. Parental alienation is any behavior by a parent that could create alienation in the relationship between a child and the other parent. There are varying degrees of alienation, ranging from mild and remporary to obsessive and ongoing. This issue presents a unique legal problem because it is difficult to detect or prove that one parent is intentionally damaging a child's relationship with the other parent.

Forms of parental alienation include: (1) false allegations of abuse, (2) describing other parent as not caring about the child, (3) interfering in communication between the child and the other parent, (4) finding excuses to cancel visits with the other parent, and (5) interrogating the child for negative information about the other parent.

Grandparent Visitation

Grandparents may file an action for custody of their grandchildren if they allege that a parent is unfit or that child abuse or neglect is occurring, even if there is not an ongoing custody dispute. However, under current law grandparents generally do not have standing to seek visitation unless there is an ongoing custody dispute. In these circumstances, the grandparents have the burden of proving that visitation would be in the child's best interest.