Frequently Asked Questions in a Divorce Consultation (Part IV)

Who will get the kids?
An agreement between parents is always preferable to going to court and having a judge determine your custody arrangement. In an agreement, you and your spouse maintain control over exactly what your custody arrangement looks like and can consider any factors that affect your children’s best interests (like each of the parents’ work schedules, schooling arrangements, extracurricular activities, locations of each of the parents’ homes, the children’s ages and wishes, and so forth). Until there is a custody agreement between the parents, each parent has equal rights to custodial time with the children of the marriage.

When can my child choose the parent with whom they wish to reside?
There is no set age when children get to “choose” their custodial parent. The focus in determining a child custody agreement is what is in the best interest of the child. An older child or teenager’s wishes should be given considerable weight when determining a child custody arrangement with your spouse or the other parent. Teenagers who have their own lives including jobs and extracurricular activities and are able to drive are unlikely to follow a child custody arrangement with which they disagree. Forcing a teen to follow a custody arrangement with which they disagree is likely to cause more harm than good in your relationship with the child. A younger child’s wishes should be considered, but generally should not be determinative. Children often tell both parents they want to live with them. This is typically because children often wish they could have their “old life” back, living with both parents like they used to when their parents were together, and also because children want to please their parents, particularly in times of perceived stress and anxiety.  

Is there a custodial preference for mothers over fathers?
No, there is not a custodial preference for mothers over fathers in North or South Carolina. Until a judge orders otherwise, or the parents agree otherwise, two married parents who are separating have equal rights to custody of their children. We have seen that children benefit from strong relationships with both of their parents. An experienced family law attorney can provide ample guidance to parents questioning what schedule might be in the best interests of their children, as there are many variations of parenting time schedules. The best schedule is the one that works well for your own family.

If parents share custody, does anyone pay child support?
It depends. The Child Support Guidelines in both North Carolina and South Carolina determine if and how much child support should be paid. The child support obligations are loosely based upon how many nights per year a child spends with each parent. In North Carolina, for example, child support for shared custody is determined by using the Child Support Guidelines “Worksheet B.”  If parents share custody of the children equally, you enter in the following information on Worksheet B to determine if child support is owed:

• number of children,
• each parent’s gross monthly income,
• pre-existing child support payment (for children not of this relationship),
• number of other children (children not of this relationship),
• the number of overnights with each parent,
• the amount and who pays work-related childcare costs,
• the amount and who pays health, dental, and vision insurance premiums for the child, and
• any extraordinary expenses paid for the children.

Once all of the information is entered into the worksheet, the math formula in the worksheet produces a suggested child support obligation (if any is required). If the parents have comparable monthly gross incomes, there may not be a child support obligation required, or it may be so negligible that the parents agree that no child support will be paid. If one parent earns a significantly higher income than the other, then the higher-earning parent will typically have a child support obligation.

Can I move?
Yes, you are legally able to move wherever you would like. If you have children, however, you may not have the legal right to bring them with you when you move. If there is no custody order or agreement in place, each parent has equal legal rights to the children. If you are separated and want to move the children out-of-state or far away from the other parent, you must inform the other parent and get their approval to take the kids with you. If the other parent does not agree and you move with the children anyway, the other parent could file for an emergency, expedited, or temporary order in court which could force you to bring the children back to their home state. If you move with the children and do not inform the other parent of the children’s whereabouts, the legal consequences could be dire. Courts take a parent’s constitutional right to parent his or her children very seriously and moving without informing the other parent is not likely to provide you with the outcome you desire in your custody case.

​In most circumstances, it is best for children to have access to and a meaningful relationship with both of their parents. Moving children far away from one of their parents can have major legal and emotional consequences for you and for the children. Consult with an attorney for more information and guidance on your specific custody situation, as we understand these situations are nuanced and complicated. 

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