Child custody and visitation cases in North Carolina can be quite complicated. There are several questions we hear from Family Law clients in Charlotte around these topics. Below are some of the most frequently asked questions, and they were also addressed in Missy’s recent guest appearance on the NC Divorce Info podcast.
Before there is a court order in place, what rights do we have?
Before there is a settlement or court order: general rule applies: each parent has co-equal rights to the physical possession of a child of the marriage. Basically, custody can be changed by either parent whenever they want. This obviously leads to issues such as:
- Unpredictability and instability for the child
- Either parent would be completely free to move from an existing county of residence or to leave the State of North Carolina with the children, unless the sole purpose for leaving was to evade the jurisdiction of our courts.
What is the difference between physical and legal custody?
Physical: Deals with where children live
Legal: addresses who will make major decisions affecting the children
Sole custody: one parent has physical AND legal custody
Joint legal custody: split decisions (medical, education, extracurriculars,
religious), OR discuss and one parent has primary decision
Joint physical custody: 2 primary addresses, go back and forth
Regardless of the terminology, it doesn’t determine amount of time.
At what age are my kids able to voice an opinion regarding who they want to live with?
The answer is complicated so the short answer is: It depends. Different judges will have different thoughts on this. The “sufficient age to exercise discretion” is different for each child. It’s a decision the judge will make. Generally, the child must be 12 or older. While other states have specific agent listed in their statues, NC does not. It’s important to note the child does not have the right to make the decision, but it is something the judge will factor into their decision-making process.
The determining factor is always the best interest of the child. The stress inflicted on a child who has to testify in court is often a consideration. Technically, they can be heard in open court, but an experienced family law attorney will often ask for the interview to be conducted in chambers (judge, clerk, attorneys).
What impact might dating have on custody and how do I go about introducing other people to my children?
Again, it really depends. If we are in a court case, the judge may consider this as a factor, circling back to what is in the best interest of the child. The judge will also make a determination based on the type of person in the child’s life. If that person is abusive, an alcoholic or has a toxic relationship with the kids, that will impact the judge’s decision.
The judge will also look at how your dating habits having impacted the kids. For example, if they are now going on more family-oriented weekend trips or being included in family-centric activities, the situation is more likely to be deemed favorable.
If you are working through a settlement, it’s important to note that your dating habits could negatively impact the willingness of the other person to cooperate and potentially even halt settlement talks.
The bottom line is to wait until you are sure this is a person you want to introduce your kids to and then let the other parent know first before they find out from the kids.
What happens if I need to relocate with my kids?
In the absence of a written document prohibiting such a move — is not
abduction, unless the motivation for moving with the children is to evade the jurisdiction of the North Carolina courts. It is still best to get consent from the ex OR file a child custody action and include a request to move – depending on county, these actions can get these heard faster.
When there is a court order/settlement agreement in place, there is usually language outlining moving guidelines. For example, someone can move up to xx miles and they would need to come back to court/mediation if the move extends beyond those terms.
Even if you have primary custody and a move is within guidelines, you still should be careful to move without consent. Such actions can look bad to the court. The other parent can get an emergency order, bringing the kid back to NC.
If you are dealing with a child custody or visitation situation, give an experienced family law attorney a call to help guide you through the case.