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Child Custody Basics in North Carolina

Q: Who is Entitled to Seek Custody of a Minor Child in North Carolina?

A:  Child Custody in North Carolina is governed by Chapter 50 of the North Carolina General Statues.  Specifically, N.C. Gen. Statute § 50-13.1 states in relevant part that anyone, including a parent, relative, or agency who believes they are entitled to custody of a minor child may institute a child custody proceeding.

 

Q: What Is the Standard That The Court Uses In Determining Child Custody?

A:  Courts use the “Best Interest” standard when deciding custody.  N.C. Gen. Statute § 50-13.2(a) of the North Carolina General Statues states, among other things, that the Court shall award custody of the minor child who is subject to the litigation based upon what will best promote the interest and welfare of the child.  Court must consider all relevant factors under the circumstances in making such determinations; “relevant factors” include acts of domestic violence between the parties; the safety of the child; or the safety of either party from domestic violence at the hands of the other party.  When the parties of the custody litigation are the natural or adoptive parents of the child, there is no presumption as to who will better promote the interest and welfare of the child.  Finally, the Court will consider joint custody upon the request of either parent.

 

Q: Can I Modify My Permanent Child Custody Order?

A: Yes.  A permanent child custody order may be modified.  A parent seeking to modify custody must show that there has been a substantial change in circumstances affecting the welfare of the minor child.  Once a “change in circumstances” has been shown, the court will then consider the “best interests” of the minor child to determine who is entitled to custody.

 

Q: Is Mediation Appropriate in Child Custody Actions?

 A: Not only is mediation appropriate in child custody actions, it is also statutorily required.  Specifically, N.C. Gen. Statute § 50-13.1(b) of the North Carolina General Statues states, in part that the parties to a contested child custody action shall attend mediation resolve unsettled custody and/or visitation issues before the matter is set for trial.  However, the Court may waive mediation for good cause.  N.C.G.S. 50-13.1(c) includes in the definition of “good cause” as follows: a showing of undue hardship to a party; an agreement between the parties for voluntary mediation, subject to court approval; allegations of abuse or neglect of the minor child; allegations of alcoholism, drug abuse, or domestic violence between the parents in common; or allegations of severe psychological, psychiatric, or emotional problem; or if either party resides more than fifty (50) miles from the court may be considered good cause.

 

Q: Can One Use Child Custody Mediation Negotiations Against the Other Party In Court?

A: No.  Mediation proceeding are private, confidential and, except under limited circumstances, all verbal or written communications from either or both parties to the mediator or between the parties in the presence of the mediator made in a proceeding are absolutely privileged and inadmissible in court.   Moreover, neither the mediator nor any party or other person involved in a mediation session are competent to testify to communications made during or in furtherance of such mediation session except is such testimony is about communications made in furtherance of a crime or fraud.

 

Q: Am I Entitled to An Award of Attorney’s Fees in Custody Cases?

A: Maybe. An award of attorney’s fees is governed by § 50-13.6 of the North Carolina General Statutes.  Specifically, the statutes states, among other things, in custody actions, including motions to modify custody, the court may in its discretion order payment of reasonable attorney’s fees.  But the party seeking such an award must show that he or she is an interested party acting in good faith, and has insufficient means to defray the expense of the litigation.

 

Q: Are Grandparents Entitled to Visitation Under North Carolina Law?

A:  It depends. Under limited circumstances, grandparents may be entitled to visitation. N.C. Gen. Statute § 50-13.2(b1) of the North Carolina General Statues provides a way for grandparents to gain visitation rights.  Specifically section (b1) states, in part, that a court in its discretion may provide a grandparent visitation as it deems appropriate.

 

Q: How Does One Enforce a Custody Order?

 A: Child Custody orders are enforceable by proceedings for civil contempt, and its disobedience may be punished by proceedings for criminal contempt, as provided in the contempt statute: Chapter 5A of the North Carolina General Statutes.

For more info visit http://www.ncga.state.nc.us/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_50/Article_1.pdf

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