An action for Child Custody may accompany a divorce action, but it may also be brought at any time between parents who do not reside together. In order to initiate a claim for child custody, one parent must file a Complaint, which must include certain allegations prescribed by statute. Typically a claim for custody is filed between parents; however, statute allows for third parties to file for custody in limited situations.
Once a Complaint or Motion for Child Custody is filed, all parties will be ordered to complete a Parent Education class and attend mediation. While mediation is required in most custody cases, there are grounds under which mediation can be waived, such as domestic violence between the parties, or the distance of one party’s residence from the county in which the action is taking place. Mediation must be completed before a Custody case can be scheduled for trial.
At trial a judge must determine both physical custody and legal custody of the child(ren). Physical custody refers to the custody and/or visitation schedule. In other words, the judge determines how much time the child(ren) will spend with each parent. Legal custody refers to decision making authority regarding decision of lasting consequence, such as healthcare and educational decisions. Often times the parent who has primary physical custody will have final decision making authority on these types of decisions. When parents share joint physical custody, a judge may allow one parent final decision making authority over some particular issues, and the other parent the same authority over other issues. For example, one parent may have final say over healthcare decisions, and the other may have final say over educational decisions.
The standard used to determine child custody in North Carolina is the “best interest of the child” standard. A judge has broad discretion to determine an appropriate custody schedule, but must make findings to support why the custody schedule is in the best interest of the child. Some factors judges typically consider include the living arrangements of each parent, the involvement of each parent in the care of the child(ren), any drug or alcohol issues, the ability of each parent to care for the child(ren), among other factors that affect the welfare of the child(ren).
Once a custody order is put in place, it can only be modified by a significant change in circumstances that substantially affects the welfare of the child(ren).