Jeff Marshall is a board certified specialist in Family Law
Business North Carolina's Legal Elite. North Carolina Super Lawyers.
Board Certified Specialist in Family law.
Contact Us Today

The Top Factors Considered When Deciding Child Custody

Elevated emotions from divorce cases can sometimes infiltrate the child custody process. If parents cannot come to a voluntary child custody agreement, North Carolina law requires them to attend mediation, without their attorneys. The Raleigh child custody attorneys of Marshall & Taylor PLLC stand ready to help you through the child custody issues that may arise during and after your divorce.

A judge will only get involved in a child custody case if the parents cannot come to an agreement during mediation. A judge will consider the best interests of the child before the wishes of the parent, even if a parent feels any part of the child custody order isn’t “fair.” It is easier for the entire family if the parents can come to a voluntary child custody agreement without involving a judge.

Child’s Election

The judge may consider the desires of the child regarding custody arrangements on a case-by-case basis. The older the children are, the more likely the judge will take their wishes into consideration. However, the judge will make their decision based on the child’s best interests, which may not align with the child’s expressed preferences.

Before a child testifies in their custody case, a judge will visit with them to determine whether they understand the difference between the truth and lying, and the importance of telling the truth. In older children, a judge will seek to gauge the child’s competence and maturity, often referred to as the “age of discretion.”

In general, North Carolina judges prefer that children not be present at child custody hearings. In fact, a parent who brings young children into the courtroom with them may be demonstrating poor judgment in the judge’s eyes. A judge may elect to speak to a child privately in chambers if both parents consent.

Physical & Legal Custody

North Carolina law assumes both parents have a legal right to custody without preference to either, and will consider requests for custody by both parents, or joint custody. A parent granted physical custody of the child has the right to have that child live with them either part-time or full-time. A parent granted legal custody has the right to make major decisions for the child.

In North Carolina, both parents can have both physical and legal custody of the child, particularly if they have joint custody of the child. In this case, having joint legal custody means each parent has to consult the other before making a major decision, such as whether the child should have a major medical procedure. Joint physical custody means the child lives part-time with each parent.

Physical and legal custody can also be split between the parents. If a parent is granted sole legal and physical custody of the child, for example, the child lives with them full time, and the custodial parent does not have to consult with the other parent about any child-rearing decisions. Depending on the circumstances, the other parent can visit the child according to an agreed-upon visitation agreement and schedule.

One parent can also have primary physical custody in a joint custody arrangement in which the child lives with that parent the majority of the time rather than with each parent equally.

In North Carolina, parents do not need to obtain a custody order at all. If non custody order exists, they both retain equal rights as the child’s legal parents. A custody order simply governs in case there is disagreement between the parents. Some organizations that serve children, such as schools, childcare centers, and others request or require a custody order.

Moving Out of State

Moving out of North Carolina could change your physical or legal custody rights. A judge will consider all of the elements of the move by measuring it against the child’s best interests. If you have primary custody of the child but the judge determines that the reasons for the move are not of significant value, and may instead be detrimental to the child, you may lose primary custody rights to the parent who remains in North Carolina. Then you would only have visitation rights.

Conversely, if you can demonstrate that the move will significantly increase the child’s quality of life, and if the child is mature enough to convey their agreement to the move, the judge may confirm your custody rights.

The judge will also consider the child’s continued relationship with the other parent and weigh that in accordance with the child’s best interests. For example, even if the move will lead to a better financial position for you, the judge may not grant that more weight than the child being unable to see the other parent frequently. The closer you are to North Carolina, the greater your chances of retaining custody.

Alcohol & Substance Abuse

A judge in North Carolina will consider the child’s living conditions in child custody cases, including excessive alcohol and drug use by either parent. Provided there is evidence of abuse, a judge may require alcohol and drug testing as conditions of continued visitation with the child, or supervised or restricted visits.

If you believe your ex-spouse has been abusing drugs or alcohol and want to modify your custody agreement, you should contact an experienced North Carolina child custody attorney.

Physical Abuse

A judge will take evidence of physical abuse by either parent very seriously when determining a child custody case. The judge may order a variety of custody arrangements, ranging from strictly supervised and limited visits by the abusive parent, to termination of parental rights if the judge deems that to be in the child’s best interests for safety reasons. In serious situations, a judge may issue a warrant to take immediate physical custody of the child if the court believes the child’s life is in danger.

Parental Employment

The court will consider each parent’s job in custody cases, taking into account how the job may affect the child’s best interests. Some factors the judge will consider include each parent’s ability to meet the child’s needs, such as:

  • Daily basic needs, such as food, clothing and medical care
  • Safe and adequate housing
  • Childcare and support system
  • The parent’s ability to be involved in the child’s life
  • Job flexibility and stability

Contact Us

At Marshall & Taylor PLLC, we treat child custody cases with the right amount of compassion and practicality. Give us a call today at (919) 833-1040.