To parents, almost nothing is more important than their relationship with their children. For that reason, child custody can be among the most challenging issues to resolve in a family law case. Decisions about where children will live and how parents will be involved in their lives are naturally emotionally-charged.
The attorneys of Connell & Gelb approach each child custody case with the sensitivity it deserves and with the skill that comes from decades of experience in North Carolina custody matters.
The State of North Carolina prefers that parents, not judges, make a decision regarding their children’s custody. Parents are required to participate in court-ordered mediation before going to court. Parents know their children best and are in the best position to make a custody agreement that works for their family.
There are two types of custody: physical and legal. Physical custody refers to where a child lives; legal custody refers to who makes important decisions for the children, such as decisions regarding education, religious practices, and medical care.
In North Carolina, it is presumed that both parents are equally fit and proper to have physical and legal custody even if one parent is a stay-at-home parent. If parents are able to reach agreement, either on their own, through mediation, or with the help of their lawyers, their executed written agreement will become binding on them. Each parent should have the representation of an experienced attorney to ensure that the final agreement includes the correct language and the parents fully understand their rights and obligations.
If parents are unable to agree on custody, a judge must decide. The judge will award custody in a manner to “best promote the interest and welfare of the child.” In making this determination, the court will consider “all relevant factors,” such as any special needs of the child, the child’s safety, and the ability of each parent to care for the child. In determining the fitness of each parent, the court may consider the parent’s alcohol and drug habits.
It is important to understand that there is a difference between orders and agreements. Only a court can modify a court order. Failure to comply with a court order can result in the party being in contempt of court. Agreements can only be modified by the agreement of the parties; failure to comply with an agreement may result in a breach of contract. When one parent is not complying with a custody order, it may be necessary to enforce the order in court. An enforcement action may be appropriate if, for instance, a parent is withholding parenting time from the other parent, making unilateral decisions on issues that the order requires joint decisions, or otherwise not complying with the court order.
A custody order may be in effect for many years and may need to be modified to reflect changes in the family’s situation. If parents cannot agree on a modification, the court will need to decide, balancing the need for flexibility with the child’s need for stability. There is a two-part test for a court to modify a North Carolina child custody order:
If the answer to the first question is “no,” the court will not consider the second question. Remembering that there is a difference between orders and agreements, if the parents have a custody agreement, and the parties cannot agree to modify the agreement, then it may be necessary to bring a child custody action in order for the court to decide. The action is considered an original custody determination and therefore the court determines custody in the best interest of the child—not based on whether or not there has been a substantial change of circumstances affecting the welfare of the child.
In some cases, a third party, such as a grandparent or other relative, seeks custody of a child against a parent. In North Carolina, parents have a constitutional right to the care, custody and control of their minor children. Very generally, unless there has been a finding that a parent is unfit, the parent will prevail in a custody proceeding against a third party; however, as with all areas of the law, there are other exceptions to the rule. While it is difficult for a third party to take custody of a minor child from the parents, it is very possible under certain circumstances.
Attorneys Michelle Connell and Wes Gelb are both board-certified in North Carolina family law. That certification reflects their commitment to excellence and to upholding the highest professional ethics. In addition to their extensive practice experience and depth of legal knowledge, they also understand the deeply personal implications of custody cases. They work diligently to help their clients reach an agreement that is best for them and their children. However, Michelle and Wes are also seasoned litigators, well-equipped to defend their clients’ interests and those of their children in court if necessary.
Connell & Gelb represents divorcing parents, never-married parents, and third parties in child custody matters. To learn more about North Carolina child custody and your options, contact Connell & Gelb to schedule a consultation.