Whether you're going through a divorce or are splitting up with your partner and share children, custody can be an emotional and complex issue. Importantly, custody isn't just about where the children will live — it also concerns who will make decisions for them and how much visitation time the noncustodial parent will have. There are also several different types of child custody orders that you should be aware of, based on the circumstances of your case.
While most people may be familiar with what child custody is, it's essential to understand that it comes in two separate parts — physical custody and legal custody. Parents who are divorced or separated can decide a custody arrangement among themselves or, if they cannot reach an agreement, they can let the court decide. Critically, neither parent is given custody preference when a judge determines the outcome, but rather, a decision is made that considers the children's best interests first and foremost.
In evaluating the best interests of the child, the court will consider many factors, including:
Physical custody refers to with whom the children will reside. Legal custody refers to who makes decisions concerning the children's healthcare, education, religious instruction, and welfare. Either type of custody can be "joint" and shared between both parents. Custody can also be "sole" and given to one parent. If legal custody belongs only to one parent, they do not have to consult with the other to make decisions about the child's upbringing.
Although parents who do not live in the same household are not required to obtain a custody order from the court, it is beneficial to do so in order to enforce the arrangement if necessary. Without a court order, both parents have equal rights to the child.
In North Carolina, a court can issue three types of child custody orders. Significantly, a family court judge may have the authority to issue an emergency order, a temporary order, or a permanent order, depending on the facts of the case.
Either parent can file for custody, regardless of whether the parties were ever married. In addition, grandparents or other relatives who have cared for the child may also be able to file for custody if they can demonstrate that the parents are unfit to care for the child. In some cases, grandparents may be awarded visitation rights pursuant to a custody case.
To file for custody, you must file a complaint with the court and serve it upon the other parent. Before a judge hears the case, it will usually be sent to the Custody Mediation Program. If a custody arrangement cannot be agreed upon through mediation, one of the parties can request that a judge hear the case.
An emergency order is a temporary order that is granted when one party presents adequate evidence to the court that the child is at risk of immediate danger or abduction. Within a short amount of time after the application has been submitted to the court, an ex-parte hearing will be held. This type of hearing allows the parent who brought the application to appear before the judge and present their case without the other party present.
If the emergency order is granted, a second custody hearing will be scheduled as soon as possible allowing time for service, but NC statutes do not mandate a time period for a return hearing on these types of orders, at which time the other parent can rebut the claim. At this hearing, the judge will consider the evidence and testimony raised by the other parent and determine whether the emergency order will be terminated or could be converted to a regular temporary order if there is a permanent conversion clause in the order. If there is not a permanent conversion clause, it will not convert and will remain temporary.
A temporary order is one that provides a solution to a custody dispute for a limited amount of time. Unlike when emergency orders are granted, a request for a temporary order can wait to be heard at a regularly scheduled hearing but addresses specific issues that cannot wait until the conclusion of litigation. Usually, temporary orders will designate a temporary physical and legal custody arrangement — as well as stipulate a parenting time schedule.
After a temporary order has been issued, parents may agree to its terms or they can ask the judge to make a final determination. If neither parent seeks a permanent order within a reasonable amount of time, the temporary order will convert into a final, permanent order.
A permanent custody order is one that replaces any previous order issued by the court. Typically, a permanent custody order will last until the child turns 18 or is emancipated. However, they can also be modified if there is a change of circumstances that warrants a new order. A parent may petition the court at any time while the order is in place to modify it.
A permanent custody order can be reached upon consent if both parents agree on the terms, or a judge can determine a final order based on the best interests of the child. If a parent disagrees with the judge's decision, they may be entitled to file an appeal if a mistake of law or fact was made.
Nothing is as important as your children and their wellbeing. If you are facing a custody issue, it's vital to have experienced representation on your side who can help ensure you reach the best possible outcome in your case — and for the best interests of your children. With offices located in Moyock and Elizabeth City, The Twiford Law Firm provides compassionate counsel for family law matters throughout Northeastern North Carolina and the Outer Banks. Contact us today to schedule a consultation to learn how we can help.