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Child Custody & Visitation

Child custody is the judicial determination as to a minor child’s physical and legal custody. Physical custody is the place in which the child will reside. Legal custody refers to authority to make important decisions regarding the child’s welfare. While many people believe that the default position is that the mother will have primary custody, or that there is a presumption that joint custody is best, that is not the case in North Carolina. The primary consideration in child custody and visitation cases is the best interest and welfare of the child. There is no automatic presumption as to who will best serve those interests.

In North Carolina, parents have a constitutional right to custody of their children, but may be limited or denied if one or both parents is deemed unfit. An award of child custody or visitation is not meant to punish or reward either parent. Instead, the judge must decide what custody and visitation arrangements will be most beneficial for the child’s mental, physical, emotional, and spiritual needs.

Factors Considered When Determining Child Custody & Visitation

Child’s Wishes

If the judge determines that a child or children have the ability to express a reasoned, independent opinion regarding the parent with whom he or she prefers to live, that opinion is entitled to great consideration, but is not determinative. North Carolina statute does not designate a particular age a child must reach before his or her wishes will be considered. Rather, whether to consider the child’s desire and the weight to be given to his or her wishes is determined by the trial judge.

Domestic Violence and Alcohol/Drug Abuse

When determining child custody and visitation, the trial judge will consider any history of domestic violence and any drug or alcohol abuse issues involving either party. To this end, the judge may order supervised visitation, require a party to abstain from alcohol, and/or require a parent to participate in alcohol-monitoring. In essence, the judge can impose conditions he or she deems necessary to ensure the safety and well-being of the child(ren).

Visitation

It is natural in high-conflict cases for one or both parents to initially take the position that the other party should have little or no visitation with the non-custodial parent. While emotionally understandable, this position is rarely realistic. It is extremely unlikely that any judge will deny or severely restrict visitation. Unless visitation with the other parent would be detrimental to the child or jeopardize his/her welfare, you can expect the judge to grant fairly liberal visitation. Unless there are extenuating factors, KYA Law encourages its clients to take the most legally reasonable position rather than advocating for extreme arrangements.

Mediation

In North Carolina, parties involved in child custody and visitation disputes are required to participate in child custody mediation. In these mediation sessions, parents meet together with a court-employed psychiatrist, psychologist, counselor, or social worker in an effort to arrive at a mutually-agreeable parenting plan. Attorneys are usually not involved in these sessions. If the parents are able to reach an agreement on custody and visitation, a “parenting agreement” is drafted by the mediator and sent to the judge for approval. If no agreement is reached, the trial judge will made all custody and visitation decisions.

Custody or Visitation Modifications

A court order for custody or visitation may only be modified if there has been a substantial change in circumstances and a change in custody or visitation is in the best interest of the child. The party requesting the change has the burden of proving that the changed circumstances have affected the welfare of the child, and that a modification of custody and/or visitation is necessary to promote the well-being of the child. Factors warranting a custody modification include: interference with visitation that has a negative effect on the welfare of the child, a child’s poor health and behavior when with one parent but improved condition when with the other parent, or the emotional condition of either parent.

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Kelli Y. Allen Immigration & Elder Law

10150 Mallard Creek Rd, Suite 105
Charlotte, NC 28262

Phone: (704) 870-0340

Regular Hours
  • Monday - Friday 9:00 Am - 5:00 PM
  • Saturday & Sunday Closed

Also available by Text (704) 727-4310 or Live Chat

Service Area:

Charlotte and surrounding areas.