Author: Stephen Corby

How does a court determine what parent the child should live with?

In NC, the guiding principle in all custody or custody modification decisions is that custody will be granted to the parent/person that is, in the opinion of the judge, the one who will promote the interests and welfare of the child. 

A judge determines the best interests of the child by considering ALL relevant factors such as:

  • Acts of domestic violence between the parties

  • Sexual conduct of the parties (sex in the home that child is exposed to)

  • Spiritual development—court cannot prefer one religion over another but can take into account if there is a parent who will nurture the child spiritually

  • Age of the parties—if there is a nexus between the parent’s age and the ability to take care of the children

What is joint custody?

Joint custody is when both parents have equal custody of the child. If one parent requests join custody, the court MUST consider it.

Who may initiate a custody action?

  • Parent

  • Relative or other person with a parent-child relationship; or

  • Grandparent who alleges parental unfitness or neglect

How do courts decide custody determinations between a parent and a non-parent?

NC follows the Petersen Presumption, which is a very hard presumption to rebut. It states that parents have a 14th amendment right to custody, care, and control of their children. Therefore, the court always presumes that custody with a parent over a non-parent is in the child’s best interests. The non-parent can only rebut this presumption if they show: the parent is unfit, the parent has neglected the child; or the parent has engaged in conduct that is inconsistent to the parental status. Once the non-parent shows one of the three things mentioned above, the court applies the best interests of the child test.

How do courts decide custody determination between the parents?

When two parents are fighting over custody of their child or children, the court will always start with applying the best interests of the child test.

When can a parent file for modification of a child custody order?

To modify child custody a parent must show a substantial change in circumstances that impacts the child. This impact can be either negative or positive. Once a substantial change is shown the court then applies the best interests of the child test.

Am I allowed visitation if I am a grandparent?

Generally, grandparents do not have an automatic legal right to visit their grandchildren. The reason for this is that if court were to recognize grandparent visitation as a right, it would interfere with a parent’s fundamental right to the custody, care, and control of their children. However, a grandparent can always petition the court for custody if they allege that the parent is unfit or neglects the child. In NC, grandparents must have “standing” to bring an action for visitation rights. This means that there must be an ongoing custody dispute (divorce, custody, or separation), or the parent is unfit, has abandoned/neglected the child, or died (no one has custody).

Who can bring an action for child support?

Any parent, person, agency, or institution having or seeking custody.

How is child support calculated?

NC uses the “Income Shares Model” to determine the amount of child support. The guidelines set the child support amount based on the income of both parents. Each parent pays their proportionate share of a guideline-derived amount of the state-estimated cost of raising a child at the parents’ combined income level. Amounts for extraordinary expenses, like child care, dental expenses, counseling, and uninsured medical expenses are added to the based child support obligation and shared in the same percentages.

Does the court always have to follow the guidelines?

Generally, no. The court can only deviate from the guidelines when they do not meet OR exceed the needs of the child or it would otherwise in some way produce an unjust or inappropriate result.

When does the duty to pay child support end?

  • Child is emancipated

  • Child turns 18 or graduates from high school (whichever is later)

  • Child is 20 and is attending school and making satisfactory grades

  • Child lives independently and there is no obligation to support

How can I modify child support?

Child support can be modified in 2 circumstances: (1) More than 3 years have passed since the initial child support hearing and there is a 15% deviation from the guidelines; OR (2) There is a substantial change in circumstances.