How Does a Judge Determine Child Custody in North Carolina?

When parents separate, child custody and visitation pose difficult and emotional questions. While parents often can reach an agreement on these critical issues, a court makes the necessary decisions when the parents cannot. In our family and domestic law practice at The Twiford Law Firm, parents contemplating separation or divorce often ask how a judge determines child custody in North Carolina if a custody case goes to court.

North Carolina Custody Laws

State statutes on govern custody proceedings in North Carolina. In N.C. Gen. Stat. § 50-13.01, the law includes an expression of the state’s interest on custody matters and establishes policies that:

• Encourage parenting agreements to reduce unnecessary litigation and promote the child’s best interests
• Set the expectation that parenthood is a substantial, continuing responsibility
• Encourage equitable sharing in parenting duties, as well as programs and court practices that promote both parents’ participation in the child’s life and maintenance of a relationship with each parent, when it is in the child’s best interest

These policies establish overarching guidelines for every custody case decided by a North Carolina court.

When a judge determines custody, the primary consideration is to “best promote the interest and welfare of the child.” The law specifically provides that no presumption applies in favor of either parent as to who will better serve the interest and welfare of the child.

The judge has wide discretion in making custody determinations. The statute requires the judge to consider all relevant factors, specifically including:

• Acts of domestic violence between the parents
• Safety of the child
• Safety of either parent from domestic violence of the other parent

If either party requests joint custody, the judge must consider the request. The court has authority to order joint custody or exclusive (sole) custody to one person. The custody order may include other terms that promote the child’s interest and welfare, including visitation.

The statute includes other specific guidelines relating to the provisions in a custody order. The custody order must include written findings of fact that demonstrate consideration of the factors and support the conclusions concerning custody and visitation.

Factors in a Child Custody Case

The evidence in a child custody case often is wide-ranging, because of the broad discretion of the judge in considering factors and determining custody. The focus is on ascertaining what arrangement will be in the child’s best interest and welfare.

The court considers many different factors relating to the child’s physical, emotional, and mental well-being, including:

• Age of the child
• Specific needs of the child
• Ability of each parent to provide for the child
• Nature of each parent’s home environment
• Caretaking ability of each parent
• Each parent’s time available to spend with the child
• Child’s relationship with each parent and with other siblings, if any

The judge may consider the child’s preference but is not required to do so. North Carolina court cases provide that the judge should give the child’s own wishes considerable weight if a child is “of sufficient age to exercise discretion.” In making that determination, the judge decides whether the child has sufficient maturity, understanding, and judgment to express a preference about where he or she wants to live.

Role of Legal Counsel

North Carolina custody laws are extremely complex. If you contemplate a separation or divorce and face child custody issues, talking with an experienced family law attorney is essential. Attempting to navigate those issues on your own is not a good idea. You could jeopardize your rights and your child’s interests.

Your attorney will explain the law and process for resolving custody issues, in addition to assisting with your separation and other legal matters. If your custody case goes to court, your lawyer presents evidence and witnesses on your behalf. Your attorney also will counter any evidence produced by the child’s other parent.

Preparing and examining witnesses requires knowledge of court rules and processes, as well as skill in presenting evidence to the judge. Custody cases are factually complicated and every situation is unique, so providing evidence of your circumstances to the judge is extremely important.

Your attorney works closely with you in advance of the hearing to compile a list of witnesses to testify about your relationship with your child, your child’s needs, and all the other factors that will enter into the judge’s decision. Generally, witnesses are individuals with recent, frequent contact with you and your child. Your lawyer helps you identify the people who can provide testimony in court in support of your case.

Even if you think a custody case is unavoidable, a knowledgeable family law attorney may be able to find a resolution that does not require having a judge decide your custody issues. Often, lawyers can negotiate a custody agreement, especially if counsel also represents the other parent.

If the parents can reach an agreement on custody and visitation issues, there is no need for the court to decide the case. That saves you and your child from going through the difficult and emotional experience of a court case, in addition to avoiding the time and expense of a court hearing.

While a custody order from a judge technically is appealable, North Carolina appellate courts rarely overturn the custody order of a lower court judge. Instead, the appeals courts defer to the trial court’s broad discretion in deciding a child custody case. Your best chance to make your case is at the hearing before the judge — and being represented by a lawyer experienced in custody cases gives you the best chance of having the judge decide the case in your favor.

Talk With a Northeastern North Carolina Child Custody Lawyer

At The Twiford Law Firm, our child custody attorneys help clients with all types of custody and visitation issues. We also assist clients with the full range of other family and domestic issues, including separation and divorce.

With offices in Elizabeth City and Moyock, The Twiford Law Firm serves clients throughout northeastern North Carolina. Call us at 252-338-4151 (Elizabeth City) or 252-435-2811 (Moyock) or complete our online form to schedule an initial consultation.