North Carolina Child Custody 101

Coming to an Agreement
When you separate from your spouse, your main concern is probably what will happen with your child. Until there is a custody agreement in place, each parent has equal rights and access to custodial time with the children of the marriage. Coming to an agreement outside of court is always preferable to having a judge determine your custody arrangement. In an agreement, you and your co-parent maintain control over exactly what your custody arrangement looks like and can consider any factors that affect your children’s best interests. A custody agreement has many parts, including a physical custody schedule, holiday schedule, legal custody determination, defining telephone or Facetime contact with the child, and much more.

​This blog post is meant to give a brief overview of child custody in North Carolina, but there are nuances that cannot be expressed in a simple blog post. Please reach out to our office if you are faced with making a child custody determination.  

Physical Custody
Physical custody is the amount of time the child spends with each parent. The physical custody arrangement includes the regular parenting time schedule (i.e., the schedule during the school year) and the holiday schedule (which includes summer vacation and takes precedence over the regular parenting time schedule).

Regular Parenting Time (Custody) Schedules
It is common in North Carolina for a judge to consider joint physical custody, where both parents have nearly equal parenting time, unless extenuating circumstances exist. Regular parenting time schedules come in as many varieties as there are families. Some regular parenting time schedules we see often are the following (please see the images at the end of this post for a visual explanation of these schedules):

• Week-on/Week-off Overnight Parenting Schedule; ​
• 9/5 Overnight Parenting Schedule;
• 8/6 Overnight Parenting Schedule;
• 2/2/3 Overnight Parenting Schedule; and 
• Every Other Weekend Overnight Parenting Schedule.

Holiday Schedules
In a typical holiday schedule, the holidays are equally divided between the parents and then each year the schedule alternates so each parent can celebrate major holidays with the child every other year. For example, for Winter Break one parent will have the children from when school releases until the afternoon of Christmas Day (if you celebrate Christmas); the other parent will have the children from the afternoon of Christmas Day until the children return to school in the new year. The following year the parents would alternate the schedule, with the parent who did not celebrate Christmas morning with the children the prior year having Winter Break parenting time first.

Legal Custody
Legal custody refers to which parent(s) have the right and responsibility to make major decisions that will have lasting significance for the child including medical, educational, and religious decisions. Legal custody can be shared equally between the parents, which is called joint legal custody, or it can be given to one parent, which is usually referred to as primary custody. If you decide joint legal custody is the best option, then it is important to include a “tiebreaking” mechanism in case you and the other parent disagree about a legal custody decision on behalf of your child. There are several options to use for a tiebreaking mechanism: (1) Mediation, (2) Arbitration, (3) you can agree to give one parent the tiebreaking vote if you come to an impasse, or (4) you can agree to split up the responsibility for tiebreaking with (for example) one parent having the tiebreaking vote for medical decisions and the other having the tiebreaking vote for educational decisions.

What does a court consider when determining child custody?
If you are going before a judge, the golden standard is what is in the best interests of the child. Child custody will be granted to the parent(s) who “will best promote the interest and welfare of the child.” When coming to an agreement with your spouse, what is in the best interests of your child should also be the primary consideration. A judge will show no custodial preference or presumption for mothers over fathers. All parents start on equal footing in the custody determination.
The judge has wide discretion to consider any and all factors that are relevant to determining the best interests of the child. Some factors the court might consider are: the child’s age, the home environments of each parent, each parent’s caretaking abilities, the parents’ work schedules, and the likelihood of each parent to encourage the child’s relationship with the other parent.

How will my child’s wishes be considered in the custody determination?
There is no set age when children get to “choose” their custodial parent. An older child or teenager’s wishes should be given considerable weight when determining a child custody arrangement with the other parent. Teenagers who have their own lives including jobs and extracurricular activities and are able to drive are unlikely to adhere to child custody arrangement with which they disagree. A younger child’s wishes should be considered, but generally should not be determinative.

If you are facing a child custody determination, please click below to schedule a consultation or reach out to us if you have questions. We know how precious your children are to you and we are here to guide you toward a resolution.

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