Child Custody

Emergency Custody -- In North Carolina, there are only three reasons why a court would grant custody to one parent or petitioner on an emergency basis. The court will not grant emergency custody unless: 1. the court finds that the child is exposed to a substantial risk of bodily injury; 2. or sexual abuse; 3. or that 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 North Carolina courts. Depending on the county in which you live and the judge who hears your motion, emergency custody is not easily achieved. The standard for substantial risk or bodily injury is quite elevated in most cases. The fact that the other parent’s home is a mess and doesn’t regularly take the children the doctor would not qualify. The court is looking to see whether the child is exposed to bodily injury, risk of death, drugs or criminal activity in the home, severe abuse or neglect, such as being beaten or starved, or molested. Finally, if one parent removes the children from the state of North Carolina without the consent of the other parent, they subject themselves to being hauled back to North Carolina by an emergency order, which can be accompanied by the power of arrest for failure to return the children to North Carolina. If you need to flee the state for issues of domestic violence, it is VERY IMPORTANT to seek a domestic violence protective order in North Carolina before fleeing or to seek an order of protection as soon as you reach the state you are seeking protection from. Emergency Custody is governed by N.C. Gen. Stat. 50-13.5(d)(3).

 

Parental Kidnapping - Without a standing court order and recorded custody decision or a signed written agreement between the parties, there is no parental kidnapping. Parents are seen as having equal "rights" to the child and either can go where they want, when they want with that child at any time. That being said emergency custody may be granted in North Carolina if the child is in jeopardy while in the custody of one parent or is removed from this state.

 

Rights of Parents - Natural parents have constitutional rights to the care, control, and custody of their children, therefore, until a written, notarized parenting agreement is in place or a judge issues an order for custody both parents have equal legal and physical custody rights which can lead to complications should disputes between parents or other parties arise. Most times the police will not get involved if there is not a writing (either an agreement or an order) for custody, leaving parties fighting and children stuck in the middle. Therefore, if you and the other parent begin to have problems with custodial exchanges, you may want to speak to an attorney, who can discuss with you whether a parenting agreement or a lawsuit for custody will be a better option for you.

 

Rights of Grandparents and Third Parties - Grandparents have limited rights to the custody of their grandchildren and do not have the same constitutional rights as natural parents do, however, North Carolina has carved out a specific right to visitation in our statutes if grandparents have a substantial relationship with the minor child and granting visitation or custody to the grandparents is in the best interests of the child. There is a distinction between custody and visitation as it applies to grandparents and you should seek the advice of an attorney before pursuing this type of claim, as it can be fairly complicated. Third parties, other than grandparents, may seek custody of children, even children other than their own, but are subject to very strict standards and must pass constitutioanl muster prior to being awarded custody of a child who is not their own. Again, it is advisable to seek the advice of an attorney for third party custody claims.

 

Litigation - Anyone can file a lawsuit in North Carolina for custody, but the court will only make an award of custody to the person, agency or institution who will best promote the interest and welfare of the child. Once a lawsuit is filed there will generally be two hearings for custody (but not always). The first, is called a temporary hearing – it is limited in duration, generally only lasting one or two hours and the order by the judge is also usually limited in duration. A permanent hearing will then be scheduled or will need to be scheduled. If a permanent hearing is never scheduled and more than a year goes by, it is North Carolina law that temporary orders will automatically become permanent. So, if you are happy with your temporary order, you may not want to schedule a permanent hearing, but if you are unhappy with your temporary order and you would like a “do over” you will need to schedule a permanent hearing. Once a permanent order is granted – it is generally long lasting and if you ever want to change that order, you would need a substantial change in circumstances to do so. The standard for changing a permanent order is much higher than is the standard in a temporary or permanent hearing. Therefore, if you receive notice that there will be a custody hearing – you need to show up! If you do not show, the judge will likely grant the other party what they are asking and if you try and come back later to sue for modification, you are much less likely to be successful. Changing permanent orders and litigating permanent orders can be very complicated and should be handled by attorneys. Custody is too important to risk. I pride myself in handling high conflict custody cases as a regular part of my practice. I am also divorced with two daughters and understand how challenging and emotionally draining custodial exchanges and visitation can be. If you are going through a straight forward custody issue and prefer an attorney with personal experience who uses flat fees rather than hourly billing or you have a complex case and you want someone who will advocate for you and your children, contact me today to get started.

 

Parenting Agreements - If you think that you and the other parent can work out an agreement for custody and have an amicable relationship, you can enter into a contract or parenting agreement together. Parenting agreements are like separation agreements but only deal with children and custody. You may also enter into a separation agreement and make custody a part of it. This is certainly a more efficient, cost effective way to handle your custody issues and is far less stressful than filing a lawsuit. Many parents get so caught up in seeking revenge or getting back at the other parent that by the time the custody lawsuit is over they may have exhausted their retirement, their savings, and their children’s college funds and they aren’t happy with the outcome of the case to top it all off. We are happy to help you with your parenting agreement. Forms are available for download on our website that will help you get started.

 

Domestic Violence and Custody - If you suffer from domestic violence in your relationship and you have children, you may need to file for an order of protection from your abuser prior to filing an action for custody. It is very likely that if you are in an abusive relationship that your partner will not enter into an agreement with you as they will see this as conceding control. It can take months from the time of filing a custody action to actually obtain an order, so if you and your children are in danger you will need to go to your local courthouse and ask to file for a domestic violence order of protection first. Please see the Domestic Violence link for forms and information on filing and resources. Once you file - an ex parte order will be put into effect - which will generally give you around ten days of protection before you have a hearing to request that the order stay in effect for one year. You may request at both hearings that the judge also issue protection for the children. Depending on the allegations and evidence, the judge may grant you sole custody of the children with no visitation to the Defendant or the Defendant may receive some visitation. Many times visitation is supervised or infrequent. It is important to file a custody action soon after receiving an order of protection so that when it expires, you have something more permanent in place to protect your children. Also, a Chapter 50 – custody order will trump your 50B domestic violence protection order, so if your abuser is the first to file a custody action, he or she may end up getting more time than the protective order originally granted. Child Protective Services will automatially become involved if you have a domestic case involving children, so don't be alarmed if you are contacted by CPS. See an attorney right away if you are having custody and domestic violence issues.

 

Mediation - You and your partner may also choose to hire a private mediator to help you work through your disputes. Mediation is becoming more and more popular as a means to resolution. Mediation is voluntarily, which means if you do not agree with the final outcome, you do not have to sign anything nor are you obligated to anything except maybe to pay the mediator that you hired. The mediator is unbiased, however, and will help you and your partner meet your objectives without taking sides. Mediation can achieve a much more peaceful resolution to custody disputes and cost a lot less than litigating. Mediators can range from $150.00 an hour to $350.00. How long it takes will depend in part on you and your partner, but for the most part, it can be handled in just a few hours. You are free to also hire an attorney and bring an attorney with you. You will have to pay the attorney for their time as well. There are many mediators who are also attorneys, and will advise you as you go through mediation, thus, you may not need to hire your own attorney further decreasing your costs. The benefit of private versus court ordered mediation is that you will likely not be in the same room as your significant other. Whether you choose a private mediator or participate in court ordered mediation, once a lawsuit is filed, custody mediation is required in North Carolina. We offer mediation services in low conflict and high conflict custody cases including cases involving domestic abuse. Our office is uniquely situated such that we have two separate buildings that adjoin so that the couple does not have to interact or even be in the same building during mediation. We charge the low hourly fee of $150.00 per hour for mediation and in cases where there is an active Domestic Violence Protective Order only charge $100.00 per hour.

 

Mediation may be waived if you have a domestic violence protective order in place, one of the parties abuses drugs or alcohol, one of the parties' lives far away, or mediation is burdensome in some way. You must file to become exempt from mediation or may face sanctions for failure to comply with court rules. Before you ever have a hearing for custody, you will be scheduled for mediation orientation and then mediation with the court. This is a free service provided by the court system. Although mediation attendance is mandatory, again your agreement is not. If you do not agree to what is being discussed or offered in mediation, you do not have to settle. The mediator will inform the court that you were unable to reach an agreement and you will move forward with your hearing on custody. If you are able to settle, a mediation agreement will be signed by both parties and the mediator will file this with the court, which will take the place of your hearing, and will be binding on you and your partner. You will no longer have a hearing on custody but will have to abide by the terms of the mediation agreement or be subject to future litigation.