How to File for Sole Custody in North Carolina

Sole custody parent with child in Raleigh, NC

If you and your spouse are divorcing or have divorced, and you feel your ex-partner is not suitable to be an equally involved parent to your children, you may be considering filing for sole child custody in North Carolina. To learn more, we're sharing what you need to know about sole custody in North Carolina.

Types of Child Custody in North Carolina

Because of complicated laws, filing for sole custody may not be a cut-and-dried action. You'll need a strong family law attorney on your side to fight in your child custody case, who understands the nuances of NC child custody laws.

Understanding Legal Custody

First, there are two types of custody: legal and physical. Legal custody refers to the ability to make decisions for a child, such as where they go to school, the religion they practice, or the medical care they receive. With joint legal custody, both parents have equal say in these matters and both parents must agree on a course of action. With sole legal custody, the custodial parent can make decisions on the child's behalf alone and does not need to speak with the other party.

Understanding Physical Custody

Physical custody refers to with whom the children live. While many people believe that mothers receive preferential treatment or are automatically given custody, that's actually not the case, especially in the past two decades. Now, fathers have equal rights to child custody in North Carolina.

Most often, judges determine it is in the best interest of the child for parents to have joint physical custody, meaning the child spends time with both parents, though it does not necessarily mean equal time. For example, joint custody can be one week with one parent and one week with the other, it can be weekends with one parent, week days with the other, or some other child custody schedule that either the parents agree on or the judge puts in place. In cases where a child spends more time with one parent than the other, one parent may be said to have primary physical custody with the other having visitation rights or secondary custody. There is a minimum guideline of one weeknight visit per week and every other weekend for it to be considered joint custody.

Sole physical custody is when one parent has primary physical custody for a significant amount of time, generally more than the minimum joint custody arrangement, and the other has visitation that often has stipulations attached. This could mean the visits must be monitored or supervised or that overnight visits aren't allowed.

Understanding Sole Custody

Typically, sole custody, both legal and physical, is only awarded when the judge determines a parent is not fit due to issues such as:

  • History of abusing the child
  • History of abusing the other party
  • Drug or alcohol abuse
  • Inability to provide a safe, stable environment
  • Physical and emotional health problems

Can Grandparents File for Sole Custody?

In North Carolina, grandparents do not have guaranteed visitation or custody rights. However, when deferring back to the “best interests of the child” principle, a grandparent can request visitation, particularly if it's during an active divorce or custody dispute. Grandparents are often awarded visitation or temporary custody when there is an acrimonious custody case between the parents.

Filing for Sole Custody

The steps to filing for sole custody in North Carolina are challenging and having a child custody lawyer on your side can be immensely beneficial to ensure the process is handled correctly.

Whether you hire a lawyer or not, the process has similar steps. Here is what to expect when you pursue full custody.

Step 1: Prepare

When preparing for custody in North Carolina, one should come to know what they expect to get. Which of the following will best fit the needs and interests of your child?

  • Sole physical custody
  • Joint physical custody
  • An agreed-upon custody arrangement
  • Visitation rights
  • Supervised visitation
  • Child support payments

These are all aspects that you'll need to understand to be prepared. North Carolina custody laws aren't the easiest to grasp. If you can't afford a lawyer, seek a free or low consultation.

Step 2: Open a Case

Now that you've prepared yourself, it's time to open a case with the North Carolina courts. 

  • Can be filed in conjunction with an open separation or divorce case
  • If no other cases are currently active, open the case independently

After opening the case, you must follow up and notify the other parent. There are plenty of ways to do this without contacting the other parent in hopes of preventing an ugly custody dispute from unfolding.

Possible: In Case of an Emergency

The judge will issue an emergency order if sole physical custody due to an emergency is requested, and a pending custody action will be released. The judge will then schedule another hearing to decide on primary custody. 

Step 3: Mediation Comes First

Unless an emergency is declared, all parents must try child custody mediation first. Courts offer mediators for free to try to avoid a custody trial. If both parents agree, custody agreements are then drafted by the mediator, and in this case, parents can skip steps 4–6. If parents don't come up with an agreement, their case will head to a hearing.

Step 4: Hearings

Here you'll modify custody and present any information or defense you have. The judge will then devise a custody order for one or both parents, assigning both legal and physical custody.

The following are a few of the actions that may be seen in a custody rights hearing:

  • Child Custody Evaluation
  • Guardian Ad Litem
  • Parenting Coordinators can sometimes be assigned to a custody case that involves high-conflict situations
  • Temporary Custody Order
  • Ordering a secondary custody hearing

Parenting Class

In some cases, a parenting class may be requested by the judge. The judge will decide on a parenting class that best fits your family's needs. There are two options in North Carolina:

  • One-Hour Class: Taught by the family court staff
  • Four-Hour Class: Taught by court-approved professionals

Step 5: Motion of Discovery

This is one of the more extended parts of the trial. Both parties must request information to help prepare for the trial. The discoveries will contain different questions for both the parents and witnesses involved.

The discovery will help lawyers develop depositions in the custody case. Here is what a deposition may look like: 

  • Attorneys prepare and ask questions under oath
  • Questions must be answered honestly
  • Refusal of a question may be used against you in the future of the trial 

Step 6: Trial

If the case ultimately came to a trial, the parents could not reach a joint physical custody agreement on their own. Therefore the custody case will be turned over to the family law.

Step 7: Permanent Custody Orders

A Permanent Custody Order is most likely the final step in the custody battle, determining:

  • Schedule 
  • Child care costs
  • Child support

Both parents must abide by these court decisions until the child turns 18 or is emancipated.

Over the years, the child’s life may change drastically and some modifications must be made in the joint legal custody agreed upon. The court can help with these modifications over time if this is the case.

Throughout Your Case

To ask the court for a custody order or to update an existing order, you or your attorney can file a complaint (for a new custody order) or a Motion to Modify (to update an existing order) in the county where you or the other partner has lived for six months.

After filing, the other parent must receive the summons, which may be issued either by a sheriff or received through certified mail. The other parent must receive this before anything can be decided. In the interim, it's important to gather any information that may help your case, such as proof of abusive or neglectful behavior, evidence of illegal drug use, or other actions that could jeopardize the health, safety, and well being of the child.

How to Improve Your Chances in North Carolina Child Custody Cases

Parents are not guaranteed to receive full custody. However, there are some actions you can take to improve your chances.

We want to stress the importance of putting children first. Custody is not a battle against your ex. This is a serious look at which arrangements will be best for your children.

To make your best case, there are some things you can do to be a better parent and present yourself in the best light to the court.

Spend Time with Your Children

No judge will grant a child custody order to a parent who does not appear to spend time with their kids. Parents who are genuinely interested in a child's welfare will make spending time with their children a serious priority. So make time for your kids and keep a record of how much time you spend with them.

Make a Calendar and Record the Time Your Ex-Partner Spends with the Kids

This is the opposite of the previous point. If you need to show your ex-partner doesn't deserve sole legal custody, then you should record the time they spend with the children. Regardless of where the child lives, with either the mother or father, track how much time they spend with your ex-partner.

Change Your Schedule to be Home for Your Child

When your child is not in school, you should be available to be with them. If the child resides with you, this is especially important. If your work schedule is not flexible, you can look at involving the child in extra activities to keep them safe and productive while you finish work.

Stay Involved in All Parenting Decisions

Things like education, healthcare, and religion are important. Talk with your ex-partner about these and get involved in the decision-making. Use email or text messages because they can be recorded. Show your care for the minor child by providing input, suggestions, and reasons for how the child will be raised.

Improve Child Custody Chances by Showing Good Parenting Skills

Parents fill a lot of roles in their children's lives. You can improve your child custody chances by acting like (and being) a good parent. This means at least a few things:

  • Help with homework and school
  • Discipline children appropriately without any hint of 'too much'
  • Supervise children to keep them active and safe

Parents could write a much longer list, but these are a good start. Be a good parent, and your chances will improve when you request custody.

Keep a Log of the Missed Activities and Appointments

It's not pleasant, and can even feel petty, but you should keep a record of the activities and appointments the children's other parent misses. This is how you can show you are better at caring for your children than their other parent. These records don't need to be super detailed and you don't need to become a super spy with photographic evidence. Simply make a note of the appointment, date, and the absence of the other parent.

Custody Decisions Consider Your Home

A court order for custody will be given after a judge weighs all the circumstances. One factor is the suitability of your home. Make sure you have enough bedrooms, beds, and rooms for your children. Keep your home clean and sanitary. Take pictures if you feel this will become a point of contention in court.

Do Not Poison Your Child's Relationship with the Other Parent

If you currently have joint custody, then be careful about how you discuss the parent with your children. You should not do or say things that undermine their position as a parent. Criticizing them, reversing their parenting decisions, and creating negative feelings in your child towards their parent is a bad idea. There are two reasons for this:

  • Most importantly, it will negatively affect your children. You will simply make them unhappy.
  • The mother or father may have parental rights, so undermining these will be viewed negatively by the custody evaluator.

Since you are arguing for your parental rights, undermining someone else's parental rights is a bad idea. A simple solution is to accept what your children say about the parent and reply with a gentle statement showing you will not discuss the matter with them.

Schedule a Consultation with Our Child Custody Attorneys in Raleigh

Resolving child support, winning a custody order, and resolving all the difficulties arising from a divorce decree takes time and care. You may be able to resolve some matters yourself. However, many people benefit from professional legal services to help them navigate the complex parts of the law and legal process. If you would like to learn more about filing for sole custody in North Carolina, reach out to our experienced family law firm today. To schedule a consultation, reach out to us today at (919) 301-8843 or fill out the form below to learn more.

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