Who gets custody of the kids?

A determination of custody is based on the best interests of the minor children. (N.C.G.S. § 50-13.1) There is no presumption in North Carolina that a mother will get custody of the children. North Carolina does not have a gender preference in custody matters. The court will look at which parent will best promote the interests and welfare of the children. If a parent requests joint custody, it shall be considered by the court. The court can award joint custody or may award sole custody of the minor children to one parent while the other parent has visitation. How does the court determine which parent will best promote the best interests and welfare of the children? The court will look at many factors, but some factors include the children’s physical, mental and emotional states, their educational histories, their religious or spiritual backgrounds, their ages, and development. The court will also look at, among other things, which parent is able to spend more time with the children, which parent has historically given more time and attention to the children, the physical, mental and emotional states of each parent, and each parent’s commitment to educational, moral, spiritual and emotional development. The children’s preferences can be considered, depending upon the age of the child expressing the preference. However, a judge is not required to consider a child’s preference, particularly if that child’s preference does not serve his or her best interests.

Another consideration in child custody is where a child custody action should take place. We are governed by the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), which is codified in North Carolina General Statute § 50A-201 (UCCJEA). This statute provides that a court of the State of North Carolina has jurisdiction to make an initial child custody determination only if North Carolina is the home state of the child. That means that at the time the child custody action is filed, the child is currently living in North Carolina or if the child is no longer in North Carolina, he or she lived in the state for at least six (6) months prior to the filing of the action, and one parent still lives in North Carolina. Section 50A-201 provides for a few other instances when a court in North Carolina may exercise jurisdiction over an initial child custody action.

If you and your spouse do not have a child custody Order from the court, or have entered into a written, signed and notarized child custody agreement, you and your spouse have equal rights to exercise custody of your children. That means if your spouse wants to pick the children up from school on a particular day, it is perfectly legal for them to do so, regardless of how much time the children normally spend with you or your spouse. It is also legal for your spouse to take the children out of state or even out of the country. Without a child custody Order, or a written agreement, it is not kidnapping if your spouse takes your children out of state or out of the country. If this is a big concern for you, then getting an Order from the court, or entering into a written agreement is vital.

However, if you do have a child custody Order, the Parental Kidnapping Prevention Act (PKPA), a federal law, offers you protection. It says that full faith and credit is given to child custody determinations and the appropriate authorities of every State shall enforce the Order according to its terms. In other words, if you have a child custody Order that gives you primary custody, for example, and your spouse moves with the children to California, a court in California must uphold the North Carolina Order, unless the California court can exercise jurisdiction over the action by making a determination that California is now the home state of the children. Unless California can exercise jurisdiction under the provisions of the UCCJEA, then the California court cannot modify the North Carolina court Order.

Child custody, like alimony, can be one of the most difficult parts of any settlement negotiation, because it is such a highly emotional subject. Each parent thinks they are the best person for the children to be with, and the children are often caught in the middle. At The Yelverton Firm, PLLC, we encourage our clients to take a step back and look at the custody situation from the child’s perspective. It is easy for parents to get caught up in their own needs and lose sight of what the children need, which can often mean a significant amount of time with both parents. In a collaborative divorce negotiation, we ask the parties to talk to each other about their needs in a custody negotiation, then to talk about how each parent’s needs can be met, while primarily meeting the needs of their children. Approaching a custody negotiation from that perspective can result in creative custody schedules that work for everyone involved.