Nothing is more important than doing was is best for your child. At Vorhis Legal, we focus on effective, long-term strategies for getting clients and families the best possible custody agreement or order. We work hand in hand with you to come up with detailed and innovative custody plans for your family. At the same time, in the unfortunate event we cannot negotiate a plan that works for you and your child, we are always preparing for a hearing on custody.
Custody Orders & Agreements
Custody orders and agreements apply to any minor children of the parties, whether the child is a natural born child of the parties or if one or both parties adopted the minor child. A custody order or agreement can also apply to a child who has reached the age of majority, but suffers from significant mental handicaps which render the child dependent. The guiding principle for North Carolina courts is what custody arrangement is in the “best interest” of the minor child.
It is important to understand what is included in the broader term “custody”. This term in the broadest sense encompasses two primary concepts- who will have physical custody of the minor child (with whom does the child live) and who will have the authority to make both day to day and large decisions for the minor child. In order to make clear what specific issues we are discussing, attorneys will often use the terms, “physical custody”, “legal custody”, “primary physical custody”, “joint physical custody”, “shared physical custody”, “shared parental responsibility”, “joint decision making authority” and “ultimate decision making authority”.
Physical Custody at Separation
At the outset, it should be noted that North Carolina has no “standard custody schedule” and statutes offer no guidance on what a specific custody schedule should be. Some specific jurisdictions in North Carolina have example custody schedule or presumed custody schedules, but those generally do not apply in Western North Carolina. Buncombe (City of Asheville) Henderson (City of Hendersonville) and Transylvania (City of Brevard) counties have no “standard custody schedules” and there are no presumptions that apply. Further, it is also important to understand that when a married couple separates and there is no custody order, there are no specific guidelines to custody, meaning that either party can claim custody of the children and try to impose a custody schedule on the other parent. This almost always leads to a large amount of conflict between the parents and can have a negative impact on the child. If the parents can’t agree in this situation, it is typical that one parent or the other files a claim for child custody and seeks a temporary custody order to resolve the dispute. As can be seen, positioning your custody claims early can be vital in such cases.
Types of Custody Schedules
The specific physical custody arrangements vary widely based on what schedule each party desires, the preference of the child (if the child is old enough- more on that below), the fitness of each parent, work schedule of each parent, the physical distance between the parents’ homes and a variety of other factors. Determining the best child custody schedule for each family is a fact specific determination in each and every case.
Physical custody schedules (referring to which parent the child physically resides at what times) are either entered by agreement or by order of the court, and can run the spectrum from an equal split of time, to one parent having the minor child nearly exclusively. For parents who share time with the minor child equally, specific scheduled can vary widely, but common rotations of the minor child are from week to week with an exchange on one designated day a week (sometimes called a 7-7 rotation), or some version of what is known as a “2-2-3” schedule, wherein one parent always has Mondays and Tuesdays, the other parent always has Wednesdays and Thursdays and the Fridays, Saturdays and Sundays are rotated from week to week. In the case of very young children, custody plans with even more frequent rotation between the parents is can be utilized.
In those cases where sharing physical custody of the minor child is impractical (for example, if the parties don’t reside in the same state) or is otherwise not in the child’s best interest, other typical custody schedules are used. The classic long distance schedule (depending on the physical distance between the parties) is for one parent to have the child the majority of the time and the other parent to have every-other weekend with the child and a significant part of summer, winter and spring breaks.
The Child’s Choice
One major misconception about custody is that the minor child gets to choose where he or she will live. This is simply not the case in North Carolina. That being said, courts in North Carolina will sometimes hear a child’s preference when it comes to custody. The child must be of an age that he or she is able to testify truthfully (understand right from wrong). Beyond the basic requirement of being competent, there are no specific rules about how old a child must be to testify. Most courts are not willing to hear the testimony of younger children, even if they are competent to testify. In the case of teenagers, many courts are willing to hear their preference in modified court settings that remove the formality and pressure of normal court proceedings, such as having the child speak to the court in chambers without the parents present.
Even after hearing the testimony of a child, the court is not bound to follow the child’s wishes. The child’s preference is merely a factor for the court to consider among many others. Overall, while views on children testifying differ, it is the opinion of most courts and family law practitioners that the minor children should be left out of the litigation completely. In most cases, the courts will not hear from a minor child unless there is a significant reason to do so. The practice of Vorhis Legal is not to call minor children unless absolutely necessary.
Custody hearings can be extremely challenging to litigate. There are significant obstacles in terms of managing the court’s trial schedules, appropriately preparing a case for final hearing and presenting admissible and compelling evidence to support your case. You should never attempt to conduct a custody hearing without the assistance and guidance of an attorney experienced in family law, especially if the opposing parent is represented by an attorney. The rules civil procedure as applied to written pleadings and the rules of evidence as applied to the presentation of your case can be quite harsh and prevent you from presenting the case you had planned on presenting. Further the specific procedures of District Courts can and do vary from county to county can be similarly unforgiving. If you have a custody case, you should only hire an experienced family law attorney. For a brief consultation with an attorney at Vorhis Legal, send us an email; we’d be happy to talk to you about your case.