| 1. |
Q. |
Do mothers automatically get custody of their
children when parents separate? |
|
A. |
The courts of most states, including North Carolina, do not establish
an automatic preference for either mother or father, but they do look very
closely at which parent will best promote the welfare and interests of the
children of the couple. As a general rule, parents are joint guardians of
their children with equal rights to custody and control, in the absence of
a court order. |
| 2. |
Q. |
What kinds of factors do the courts consider in granting
custody? |
|
A. |
They usually look at who has primarily taken care of the child during
the marriage (for example, washing, feeding and clothing the child, or helping
the child with homework), who has the best approach to discipline, who has
cared for the child since the separation (if the couple has already separated),
what work schedules either or both parents have, how each parent can provide
for the physical, emotional, educational, religious and social needs of the
child, and the temperament and character of each parent. |
| 3. |
Q. |
Can the court award attorney's fees to me in a custody
case? |
|
A. |
Under North Carolina law, if the person asking for attorney's fees is
acting in good faith and is unable to afford the legal expenses of the lawsuit,
it is possible (but not mandatory) for the court to award reasonable attorney's
fees as part of the custody order. |
| 4. |
Q. |
Do I have to file for custody in North Carolina? |
|
A. |
Not necessarily. While usually a custody suit is filed where the child
is presently residing, a person can file an action involving custody of a
minor child in the "home state" of the child (i.e., where the child has lived
for the last six months) or in any state where the child and one parent have
substantial and significant contacts and connections (such as former neighbors
teachers, doctors, relatives and so on). If this would be in another state,
you may file there. |
| 5. |
Q. |
How can the issue of custody be raised? |
|
A. |
This is done by filing a complaint with the court. The complaint for
custody must be served on the other parent. After that, a hearing may be
scheduled on custody and visitation rights. |
| 6. |
Q. |
Can a custody order be changed? |
|
A. |
No custody order is ever "permanent." However, once a parent is awarded
custody in a court order, the judge can change the custody order only if
there is a substantial change in circumstances since the time of entry of
that prior order. Usually it must be proven that the change has a direct
and adverse effect on the child. |
| 7. |
Q. |
Will my separation agreement protect me from the other
parent snatching my child? |
|
A. |
No. A separation agreement is only a contract between you and the other
parent. It is not a court order unless it is incorporated into a decree or
order of a court. A court order is enforceable by contempt of court. Court
orders of one state can be filed and registered in another state and thus
be treated as if they were issued by the second state for purposes of
enforcement. None of this applies to separation agreements. |
| 8.
|
Q. |
Can I register a court order from another state here in
North Carolina so that North Carolina can treat it as
one of its own degrees for purposes of enforcement? |
|
A. |
Yes. You may file and register the other state's decree with the Clerk
of Superior Court at the county courthouse. You may want to register the
decree in the county where you reside or in the county where the other parent
lives. |
| 9. |
Q. |
If the other parent does not like the present custody
order, can he or she file for custody in another state? |
|
A. |
Under the Uniform Child Custody Jurisdiction Act, which has been passed
and made into law in every state, the court in a custody case must always
inquire into whether the child or children have been the subject of custody
litigation in any other state. When a judge finds that another court has
made an award of custody, the judge should refuse to rule on the case and
refer the parent to the court that originally entered the custody order.
Only if that original court no longer has jurisdiction and has released or
transferred jurisdiction to the new state court may that court assume
jurisdiction to hear the custody case (unless there is an immediate and clear
emergency affecting the child's welfare). |
| 10. |
Q. |
Won't custody be settled when I obtain a divorce? |
|
A. |
Divorce decrees do not necessarily settle custody matters. A custody
order can be entered before or after a final decree of divorce in North Carolina |
| 11. |
Q. |
My daughter's twelve. Can't she tell the judge where
she wants to live? |
|
A. |
In North Carolina, the child's preference between parents is an important
factor to be considered when deciding the issue of custody. However, the
child's preference is not conclusive or binding on the issue of custody.
There is no set age for when a child can testify. |
| 12. |
Q. |
Can all children testify in court as to their
preference? |
|
A. |
The courts do not allow every child to testify as to his preference.
Whether a child is old enough is a matter to be decided by the trial judge.
This means that the judge must decide that the child is capable of testifying
truthfully. |
| 13. |
Q. |
How can a judge determine whether a child is able to
testify? |
|
A. |
The trial judge must determine that the child is "of sufficient age,
discretion and maturity" so that he can formulate and express a rational
opinion as to custody. |
| 14. |
Q. |
Can a nonparent obtain custody of a child instead of a
parent? |
|
A. |
There is a parental preference rule which states that a natural parent
(mother or father), who is of good character and who is a proper person to
have custody of the child, is usually entitled to custody against all other
persons. However, the main object is still what is best for the child. |
| 15. |
Q. |
If my spouse is granted custody, will I get visitation
rights? |
|
A. |
Ordinarily the noncustodial parent is entitled to reasonable visitation
rights with a minor child except in extraordinary situations, such as when
the noncustodial parent has a history of abusing or neglecting the child.
Visitation can be flexible and unstructured, assuming the parties can get
along and agree on the times and terms of visitation, or it can be highly
structured and rigid, with certain days and times set out with great specificity.
Ask for our Client Information Letter on specific visitation rights to see
the options available in this area. |
| 16. |
Q. |
What if I have other questions? |
|
A. |
Please feel free to ask our attorneys. They are here to help you. |
DB Publishing