Child Custody and Visitation 101

As with everything else in divorce, things are ideal when both parties can agree on the question of custody of the children.  Generally, the judge will accept any agreement you reach, provided it doesn’t appear that your agreement will cause harm to your children.

North Carolina child custody law can be summarized in one basic principle: Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child.

In spite of this modern philosophy voiced by the North Carolina legislature, you will find most judges are from the old school of thought on this subject and believe that (all things being equal) a young child is better off with the mother.  Because of this statement in the law the judge may go to great lengths to find that all things are not equal, so as to justify his decision to award custody to the mother.  It happens day after day, throughout the state, and it’s a reality you have to deal with.

Although, they are not bound by law to do so most courts tend to favor custody arrangements that allow for parents to share responsibility.  This arrangement is commonly known as joint custody.  While it is a great idea in its concept, it is usually not a very practical one.  Very few parents can put aside their anger to each other to agree on what is best for their child.  Joint custody merely leads to more fighting.  And even if joint custody is ordered, a child can only have one primary residence.  So the judge may still decide which parent the child will mainly live with, as well as how decisions regarding such things as education, and medical and dental care will be made.

If you and your spouse cannot agree on how these matters will be handled, you will be leaving this important decision up to the judge.  The judge cannot possibly know your child as well as you and your spouse, so doesn’t it make sense for you to work this out yourselves?  Otherwise you are leaving the decision to stranger.

— If the judge must decide the question, he or she will consider the following factors:

— Which parent is most likely to allow the other to visit with the child.

— The love, affection and other emotional ties existing between the child and each parent.

— The ability and willingness of each parent to provide the child with food, clothing, medical care and other material needs.

— The length of time the child has lived with either parent in a stable environment.

— The permanence, as a family unit, of the proposed custodial home.  (This relates to where one of the parties will be getting remarried immediately after the divorce, more often, to change of custody petitions at a later date.)

— The moral fitness of each parent.

— The mental and physical health of each parent.

— The home, school and community record of the child.

— The preference of the child, providing the child is of sufficient intelligence and understanding.

— Any other fact the judge decides if relevant.

It is difficult to predict the outcome of a custody battle.  There are too many factors and individual circumstances to make such a guess.  The only exception is where one parent is clearly unfit and the other can prove it.  Drug abuse is probably the most common charge against a parent, but unless there has been an arrest and conviction it is difficult to prove to a judge.  In general, don’t charge your spouse with being unfit unless you can prove it.  Judges are not impressed with unfounded allegations, and they can do more harm than good.

If your children are older (not infants), it may be a good idea to seriously consider their preference for with whom they would like to live.  Your fairness and respect for their wishes may benefit them in the long run.


Photo Credit:  Visual Hunt


Posted in Child Custody.

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