Child Custody in North Carolina

When the custody of a child is being litigated, the natural parents of the child have the constitutional right to custody, care, and control of the child unless the parents have shown to be unfit or have neglected the welfare of the child. What this means is the natural parents are given priority in a child custody case unless either one has shown that they are not fit to be a parent.

In North Carolina, there are two types of child custody.  The first is legal custody, or the right to make important long-term decisions concerning the care of the child such as what type of school the child should attend. The second type of child custody is physical custody which is having control over the day-to-day decisions concerning the child, such as what time the child should go to bed.

When deciding who will have custody of a child, courts look at the best interests of the child. There is a misconception that courts have a maternal preference. In NC, there is no presumption that a mother will better take care of the child, so the mother of the child is given no priority over the father in court proceedings.

However, the courts do consider who the primary caretaker of the child has been during the child’s life. For example, if the father has been the one to take care of the child most of the time, then the judge will heavily consider this fact and probably award custody of the child to the father. On the opposite end of this, if a parent has had little or no presence in the child’s life and then files for custody, the judge will probably not award him or her custody.

The only way a court will review, or modify, its previously made child custody decision is if there is a significant change of circumstances. Examples would be if either parent moves a considerable distance away, or if the child is in danger because of child abuse or a drug or alcohol problem in the home.

Joint custody is also an available option in NC.  This basically means that two caregivers would share custody of the child. If either parent proposes joint custody during the custody hearing, the judge must consider it. The court has the option of giving joint custody to both parents.  Another option is to grant both parents joint custody but to grant legal custody (the ability to make important long-term decisions about the child) to only one parent.

A third party who wishes to have custody of the child may bring a custody action if there is a parent-like relationship between the child and the third party. The judge will decide if the parent-like relationship in fact exists.

When deciding whether a parent is unfit, the court can consider any past circumstances or conduct that could impact the present or future of the child. For example, if the mother of the child was an alcoholic before the child was born, evidence of this fact can be considered by the judge in a custody hearing.

Courts will usually try to keep siblings together and will consider the child’s preference is the child is old enough to have one.