If you and your spouse have minor children, you will need to decide on a parenting schedule once you’re no longer living in the same house. Until you have an enforceable agreement or order in place, both parents have equal rights to the children. Even if you currently agree how to handle custody, it is important to put that agreement in writing in case one or both of you change your mind. If you cannot decide on a parenting arrangement on your own, you will need to file a claim for child custody and a judge will decide how your children’s living situation will be structured for the foreseeable future. Child custody is broken down into two types of custody: physical and legal. The guiding factor for both subsections of child custody is the best interests of the children.
Physical custody is what everyone thinks of when hearing child custody; it is where the children will physically reside on any given day. Many judges in Mecklenburg County begin by assuming that 50/50 custody is in the best interests of the children and it is up to the spouses to prove why this may not be the case. Without an agreement by the other spouse, it is incredibly difficult to get sole custody. You must prove that the other spouse is “unfit” to be a parent, which is a high threshold. Judges (and parents) can be creative when deciding the physical custody arrangement and, even when 50/50 custody is awarded, it may not be a week-on-week-off schedule. As part of physical custody, there should be a holiday schedule and a provision regarding vacations or other changes in the regular schedule. There are many boilerplate provisions that appear in child custody orders/agreements, and an experienced family law attorney can help you decide what provisions may be helpful in yours.
Legal custody refers to who will make major decisions in the children’s lives. Legal custody recognizes that parents who do not wish to be married often have differing opinions about important subjects, and forcing them to make major decisions together will often result in disaster for the children. So, a judge may split legal custody and give each parent final decision-making authority over certain issues. For example, one parent may have final decision-making authority over educational and religious issues and the other parent may have final decision-making authority over medical and extracurricular activity issues. Alternatively, a judge may give final decision-making authority over all issues to one parent. The judge will want to hear more about each parent’s beliefs regarding these issues in order to determine who is more likely to make decisions which are in the best interests of the children.
Third Party Custody
Sometimes third parties – most often, grandparents – become involved in a custody dispute. Grandparents, in particular, often wonder whether they have any right to visitation with or custody of their grandchildren. Grandparents and other third parties have very little rights in custody disputes. North Carolina has specific statutes detailing when a grandparent can maintain an action for custody or visitation of a grandchild, but these statutes do not guarantee that the grandparent will be successful. There is a difference between maintaining an action for visitation versus custody of a grandchild. Grandparents are much more likely to be successful when asking for visitation with a grandchild, but it is important that they intervene in an existing custody dispute as quickly as possible.
Child custody is always subject to change. If you already have an Order in place but you feel that it is no longer in your children’s best interests, you can ask the Court to modify your Order based on a substantial change in circumstances. What you consider “substantial” may not be what a judge does, so you should consult with an attorney before committing to the time and expense of trying to modify an existing order.