Understanding Child Custody Proceedings in North Carolina
This guide will introduce readers with what they can expect in a North Carolina Child Custody case. This guide will explain the filing and pleading process, and what to expect in a typical child custody hearing.
Introduction to the Types of Child Custody proceedings in North CarolinaIn North Carolina, child custody proceedings can take several different forms, and each one is different from the other. Before we explore these different types of custody matters, I want to make it very clear that this guide DOES NOT advocate for pro se parties (those proceeding without an attorney). If you intend to represent yourself, you had better be able to meet all deadlines and know what they are (the judge will not, and cannot help you), draft basic legal documents that are legally acceptable, and meet all service and notice requirements. If you are contemplating filing a pro se custody action, stop here. My first piece of advice is to go seek out a competent Family Law attorney and pay them what they want. It will be worth it in the long haul. In North Carolina a Court has jurisdiction (authority) to render a child custody determination in the location where a child is physically located, and where a parent or person acting as a parent has resided for at least six (6) months next preceding the institution of an action, or where the children were living for at least six (6) months next preceding the institution of an action and a parent or person action as a parent continues to reside pursuant to N.C.G.S. ? 50A-201 et seq. This is called the Uniformed Child Custody Jurisdiction Enforcement Act (UCCJEA) and it dictates not only where an action may be commenced, but also where jurisdiction will stay and who can enforce an order. Secondly, a Court has jurisdiction to render a child custody determination only to parties with standing in the matter. Natural and/or legal parents have standing to bring an action, and in some limited cases third-party relatives may have standing as well. However, for grandparent and third party relative questions you should see an attorney because this is a specialized and complicated area that I could spend days writing on. For this guide, we will not discuss grandparent custody. In North Carolina a child custody case can take one (1) of three (3) forms by statute: A civil action for child custody under Chapter 50-13 of the General Statutes (most common), a Domestic Violence Emergency Action under Chapter 50B of the General Statutes, or a Department of Social Services Action under Chapter 7B of the General Statutes. We will briefly discuss and differentiate against each, while I again remind readers to PLEASE CONSULT AN ATTORNEY! Do not represent yourself! Going in reverse order, a Chapter 7B action is generally initiated by the Department of Social Services due to an EXISTING condition of Abuse, Neglect, or Dependency of a minor child or incompetent adult. Bear in mind, that while some people contemplate calling DSS on their ex to try and get the kids taken away, please note that this rarely works and tends to just make judge's angry when it comes before them in the proper form. DSS is not a preventative agency, they are a responsive agency only taking action when a condition mentioned above is found to exist affecting the kids. A Chapter 50B is under the Domestic Violence Statute and is a civil action that is very frequently abused for the purpose of obtaining a cheap, or free child custody order. But be warned! If you plead a case under 50B on your own as is you right, and you do so poorly and lose, you will be prevented from brining a subsequent action later under the proper Chapter 50-13 action or prevented from using the same claims. This is called Res Judicata and Collateral Estoppel. You should consult an attorney before pursuing a Domestic Violence Protective Order on your own. Also, a custody order issued by a court under Chapter 50B will only be good for one (1) year and no longer. Many will do a free consult or take a DVPO on a pro bono, or reduced fee basis and it is worth the investment. A Chapter 50-13 action is the most common and is the proper method of obtaining child custody order without DSS in the absence of Domestic Violence. An order under Chapter 50 is a permanent or temporary order depending on how it is pleaded. A Chapter 50 action can be commenced by filing a pleading, summons, and cover sheet and having the other party served with process. The Chapter 50 action also requires that the parties attend mandatory custody mediation where a program is established and most counties have them.
Pleading and Pretrial Motions and ConsiderationsTo draft a proper pleading, you should have a significant amount of legal training, but some clerk's offices have "pro se" packages. These are not necessarily adequate, but you can get your matter before a judge. As a rule, you must serve all parties and you must state your claims and allegations "sufficiently particular as to place the parties and the court on notice as to what is intended to be proved at trial" pursuant to N.C. R. Civ. P. 8. If you are the responding party, or the one receiving service, you MUST answer within thirty (30) days of service of there can be significant legal consequences to not doing so. All custody matters are filed in District Court Division of the Trial Court. You need to have an attorney review, advise you, and plead your matter for you. In the words of one judge recently, "I have seen a lot of these pro se custody cases come through recently trying to do it themselves, and they are not very good at it!" If you fail to plead your matter, or plead it inadequately, be prepared to face several different types of Motions from the other side. Once the matter is served, a mediation date for orientation should be set with the district court judge's office, and you will attend the mediation orientation. Mediation is mandatory, although there are several reasons why it can be waived; mediation is a much better solution to Court. You are more likely to work out a better deal with the other party than what you would get with the judge. A pleading must have a proper legal caption, statement of the parties, statement of jurisdiction, facts/allegations, legal authority, and prayer for relief. For a custody action IT MUST ALSO HAVE A VERIFICATION (notarized seal) with your signature on it.
Types of Custody AwardsUnder North Carolina Law, there are three (3) "flavors" of custody awards, and there is no such thing as "full custody". Custody is Joint, Sole, or Shared and Physical and Legal under Section 50-13.2. Physical custody is where the children physically reside for the majority of a given year. Legal custody is the authority of a parent to make a decision concerning the general welfare of the minor child. Generally speaking, because legal custody is a constitutionally protected institution, it is very difficult to get sole legal custody barring a showing of really good cause. Physical custody is often referred to as "primary" versus the statutory language of "sole" because it is less stigmatizing to read. Under Section 50-13.2, the court shall consider Joint Custody upon the motion of either party and order it where it is determined to be in the best interest of the children. Initial custody decisions are based upon the "Best Interest of the Child Standard" including age, gender, emotional stability of the children and parents, the needs of the child, the stability of the parents, and other relevant factors. You need to see an attorney who can fully advise you of all of these issues. As a family law practitioner, I can run through these analyses in my head in about five (5) minutes, but for you the lay-person, it is not that easy. Typically, a custody order will be primary physical custody to one parent, visitation to the other, and joint legal custody. Sometimes if the parents are amicable and live close enough to each other, the court will award joint physical and legal custody. Split or shared custody is very rare in my experience, but is available in certain situations. Custody orders are never truly permanent, they can always be reviewed if the court finds that there has been a "material and significant change in circumstances affecting the best interests of the minor children" warranting a modification pursuant to N.C.G.S. ? 50-13.5. However, sometimes we like to use a temporary custody order to test the waters to see if parents can follow them and get along. But be warned! Just because an order is temporary does not mean it cannot become permanent by doing...NOTHING! If a temporary custody order is not returned for permanency in one (1) year it becomes permanent by operation of law. A court can also reduce that time to as little as six (6) months, so you need to have a solid family attorney in your corner.
Irrevelant Custody Issues or Considerations that Commonly Come UpWhile I could spend a little time writing about the issues that are relevant to a custody matter, I can spend even more time, and more effectively just tell you what is not going to be relevant in your matter. Here is a list of a few common issues that are irrelevant in a custody case as a general rule, and simply cause animosity and ultimately drag out your case harming your child: -He doesn't pay enough child support? LAWYER RESPONSE: One has nothing to do with the other. -His new girlfriend is a witch, whore, tramp, etc. (pick your explicit descriptive)? LAWYER RESPONSE: What is she doing to the kids? Turning them out? Putting a hex on them? If it doesn't directly affect them, it's not an issue. -He tried to change visitation dates? LAWYER RESPONSE: Work it out, it is what is best for your kids. Table the hatred. -He emotionally abused me! Not our daughter, he is great with her, but he abused me! LAWYER RESPONSE: So? What does this have to do with your child? -His mother is threatening to get custody! LAWYER RESPONSE: I can threaten to sue the governor for rear ending me, but I've never met him, doesn't mean I will get anywhere. -He makes more money than me, why do I have to meet him half way? LAWYER RESPONSE: Because the court order says so, unless you want to be in contempt in which case those are grounds to change your custody order. -He has guns in the house, and I don't like guns! LAWYER RESPONSE: Is he shooting at the kids or do you know he is endangering them at all? If not, then don't buy guns. Otherwise, it's not relevant and stop worrying about what he is doing. -He won't do what I tell him to do with Suzie during visitation. LAWYER RESPONSE: The court felt he was capable of making suitable decisions for the child; let me do what he needs to do. You handle Suzie your way on your days; let him handle her on his. -He won't make Suzie call me back immediately when I call during visitation, I called like 50 times and he didn't return my calls until the next day! LAWYER RESPONSE: Stop pecking at him and interrupting visitation or you may be on the wrong end of a motion for modification. -The guy she's dating is a drug dealer! LAWYER RESPONSE: Really? How do you know? If I had a dime for every guy who told me their ex was dating a drug dealer I could pay off my Law School debt! -She lives with her parents! LAWYER RESPONSE: So did you for 18 years! Why does this adversely affect your children? Is grandma running a meth lab?