Child Custody: Contested Child Custody

Child custody refers to the legal relationship between a child and each parent. Child custody provides for the availability, rights, and obligations of each parent in raising their children after a divorce or separation. Whether child custody is decided by the parents or the courts, child custody decisions should be made based on what is in the best interests of the child.

How Custody is Decided in North Carolina

Child custody generally involves questions over the physical and legal custody of the child. Physical custody is based on the where the child will spend the majority of their time and which parent the child will live with. Legal custody is based on which parent will make the legal decisions for the child while the child is a minor, including educational and medical decisions.

Joint Custody or Shared Custody

In most cases, custody will be shared between the parents. Joint custody is preferred as a way to provide for continuing contact between both parents and the child. Shared custody, also called shared parenting, involves the child spending time with each parent. Shared custody is often divided between parents 50/50. 50/50 shared custody plans can take many forms, including:

  • Alternating weeks
  • Alternating weeks with midweek visit
  • Alternating 2 weeks
  • Rotating 2-3 days with each parent (2-2-3 rotation)
  • Rotating 3-4 days with each parent (3-3-4-4 rotation)

Custody and visitation can also be divided with other ratios. The further the parents live away from each other, the more likely it is that they will have a wider range of custody schedules.

  • 4 days and 3 days (60/40 schedule)
  • Every weekend or 5-2 schedule (70/30 schedule)
  • Every third week (70/30 schedule)
  • Alternating weekends (80/20 schedule)
  • Summer break and vacations (long-distance schedules)

With parents sharing custody, they still have to make a number of important decisions to make conflicting schedules work, avoid stress on the family and child, and avoid further disputes. This includes planning how to address school schedules, illness, family holidays, and sharing time with other family members.

Legal Custody

In most cases, legal custody is also shared between parents. Legal custody involves the authority to make decisions for the child. This includes decisions about the child's education, medical care, and religion.

When legal custody is shared, parents are supposed to communicate about any important decisions that involve the child's care and future, such as which school to go to. For minor or common issues, the custodial parent can generally make decisions.

In other arrangements, parents can divide legal custody issues, such as one parent makes decisions for the child that involve the child's education or one parent raises the child under a certain religion.

Sole Custody or Supervised Visitation

Sole custody generally involves on parent having full legal and physical custody of the child. The child lives full-time with one parent and that custodial parent makes legal decisions for the child. Sole custody often involves situations where one parent has a history of abuse, substance abuse, or are not involved in the child's life.

A parent with a history of abuse or neglect may still be allowed supervised visitation. This generally requires another adult or agency to be present to monitor the interactions between the non-custodial parent and the child.

Fighting for Child Custody in North Carolina

Some parents are able to come to a mutual agreement on child custody and develop their owner legal relationship with the children through a custody agreement, separation agreement, or consent order. However, if the parents cannot come to an agreement on child custody terms, they may need to go to court.

There are a number of reasons why parents cannot agree on how to divide legal and physical custody. Sharing custody can be difficult to arrange and a parent may feel like too much back and forth travel for the child can be disruptive. A parent may believe that spending more time with one parent can provide stability for the child.

A parent may also contest child custody because they believe the other parent cannot provide a safe and stable environment. This could involve concerns that one parent is not fit to care for a child, the parent is living with a new partner who is not a good influence on the child, or the parent is worried the child could suffer neglect or abuse.

Parents can also fight over child custody for reasons unrelated to the child's best interests. In highly contested divorces, parents may use child custody as a negotiating tactic to get something else, like property or spousal support. Parents can also use a custody dispute as a way to punish the other parent, blaming them for causing the divorce or anger over marital infidelity.

Best Interest of the Child

When the court makes child custody decisions in North Carolina, they are based on what “will best promote the interest and welfare of the child.”

Under N.C.G.S.A. Section 50-13.2, the factors to consider in making a custody determination include:

  • Acts of domestic violence between the parties;
  • The safety of the child;
  • The safety of either party from domestic violence by the other party; and
  • All other relevant factors.

The court may also take into account other factors, including the child's own preferences, the ability of a parent to care for the child, and the child's current living situation. There is no automatic presumption that the mother or father is better able to care for the child.

Child Custody Mediation or Litigation

Whenever contested child custody actions come before the court, the parties are sent to mediation. Mediation is a type of alternative dispute resolution that is intended to help the parties come to an agreement on their own. The “mediator” is a third-party who helps facilitate a discussion between the parents. The goal is for the parents to come up with their own child custody decision and to avoid litigation in court.

According to N.C.G.S.A. Section 50-13.1, the purpose of mediation is to pursue the following goals:

  1. To reduce any acrimony that exists between the parties to a dispute involving custody or visitation of a minor child;
  2. The development of custody and visitation agreements that are in the child's best interest;
  3. To provide the parties with informed choices and, where possible, to give the parties the responsibility for making decisions about child custody and visitation;
  4. To provide a structured, confidential, nonadversarial setting that will facilitate the cooperative resolution of custody and visitation disputes and minimize the stress and anxiety to which the parties, and especially the child, are subjected; and
  5. To reduce the relitigation of custody and visitation disputes.

If either party can show good cause to waive mediation, or if mediation does not result in a resolution, child custody may be decided by the court.

During litigation, the parties will present their arguments to the court and the judge will make a determination as to the terms of child custody, including physical and legal custody, custody scheduling, and visitation.

Raleigh Child Custody Representation

If you are having disputes over child custody or someone is threatening to take away your parenting rights, Jerkins Family Law is here to help. We can help you negotiate custodial arrangements, or if necessary, make a focused presentation to the court to protect your relationship with your child. Located in Raleigh, North Carolina, Jerkins Family Law is committed to helping our clients in their time of need. Contact us today and see how we can help you and your children.

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