Child Custody & Visitation

In North Carolina, there are two types of custody: legal and physical.  Legal custody is the right of the parent or parents to have a say in decisions affecting their child such as health care, procedures and interventions, educational choices, and religious beliefs. When the parties have joint legal custody, they must consult with one another and must agree upon those decisions.  Further, each parent will be entitled to access to their child's records, such as medical, dental, health, school or educational records. The Courts generally grant both parents joint legal custody unless one side can bring forth compelling evidence, which would show the Court that that parent is not a fit and proper person to have joint legal custody of the child.  In those cases, which are not the majority, then only one parent would be granted the sole authority to make decisions for the child.  Most parties agree that they will jointly discuss and agree upon decisions for their child.  In the event that they cannot agree, the Court may require that the parties use a third party neutral, such as a Parent Coordinator, to attempt to reach agreement between the parents and if they cannot agree the Parent Coordinator may be vested with authority by the Court to actually make the decision for the child.  Parent Coordinators are used by the Court in high conflict cases where the parents cannot agree on decisions that must be made for the child therefore the Parent Coordinator is appointed by a Court Order by a Judge or by the consent of both parties.

Physical custody is the right for a parent or parents to physically have time with the child. The Court may award "primary physical custody" to the parent who can best promote take care of and who has been the primary caretaker of the children in the past.  However in most cases, Courts typically feel that the children are best served by having liberal contact with both parents so the Court may award a visitation schedule in which both parents have certain time with the children.   Again, without court involvement the parents themselves  can create a parenting schedule that will best suit their family's needs, work schedules, school schedules, and other private family interests.  

Rarely,  a court may award emergency temporary physical custody to one parent without the other party having an opportunity to be heard, as an interim emergency measure.  This only applies if:

  1. The child is exposed to substantial risk of abuse, or
  2. There is a substantial risk that the child will be abducted from the jurisdiction of the court.

However even in those cases the other party is given an opportunity to be heard by the Court to present evidence as to why these allegations are not true. 

Custody orders may also be modified by the Court if the party asking to modify the Court's Order can show a change of circumstances that substantially affects the child's welfare. It is important for separating parents to understand that once they ask the Court to determine custody of their children, the Court maintains the final decision over those children, until they are eighteen, generally.  If a party violates a Court order the other party can file a motion with the Court asking that they be required to follow the Court's order and potentially be punished for contempt of court.  Sometimes a Court will order that an offending party pay the attorney's fees incurred by the other party in having to file the motion for contempt. 

Today, most of our local courts require that the parties first attend custody mediation prior to proceeding with a trial in front of hte Court to determine or to modify custody. The Courts employ a mediator which provides mediation to the litigants at a minimal cost to the parties. In the event that the parties are able to come to an agreement together regarding custody, the mediator will draft a Custody Mediation Agreement for both parties to sign. Said Agreement will then be made an Order of Court. In the event that the parties cannot come to an agreement, the Court will proceed with hearing the issue of custody.  (see more details under mediation process)

 For the sake of the children, it is best to make a conscientious effort to avoid a custody battle.

Office Hours

Gabriela J. Matthews
& Associates, P.A.
100 E. Parrish St., Suite 400
Durham, NC 27701

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Office Hours:  Monday - Friday
9:00 AM - 5:00 PM
Phone: (919) 956-7888 
Fax: (855) 422-6288

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