How Does the Custody Court Process Work?

As with any legal process in court, a custody action will begin with paperwork and filing. Prior to that, however, you should be certain that the court has the authority to hear your case. North Carolina, like most states in the country, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The UCCJEA provides rules regarding which courts will have the authority to make decisions about custody matters. According to the UCCJEA, the court that makes these decisions must be a court in the “home state” of the children involved.

Under the UCCJEA, North Carolina may be a child’s “home state” if:

• The child has resided with a parent in North Carolina for six consecutive months prior to the proceeding;

• The child and parent have significant connections with North Carolina;

• Where there is no home state, significant connections, and other states have declined jurisdiction, then North Carolina may have jurisdiction;

• In an emergency, to protect a child present in North Carolina, North Carolina courts may have temporary jurisdiction even if the child has lived in the state for less than six months. This typically happens only in scenarios where there is an imminent danger to the child.

Once a North Carolina court has jurisdiction over a child custody matter, it may exercise that jurisdiction until there is no longer a significant connection to North Carolina, or when no child or parent continues to reside in North Carolina.

Typically, to begin the process of a court ordered custody arrangement, one party will file a request with the court for a custody determination, and the other spouse will be served with that paperwork. If it is determined that the court has proper jurisdiction and the necessary paperwork has been filed, the spouse who has been served will usually have 30 days to file an answer and then the case will be underway. Initially, the parties and their attorneys might file motions for temporary custody or a temporary parenting arrangement. These temporary arrangements will simply remain in place during the time that the custody action is pending so that the parties know where the child will live while they are waiting for the matter to be heard by and decided by the court. Each county has slightly different procedural rules as to how it hears and schedules these particular motions, so consulting with an attorney who is knowledgeable and experienced in the area that you live in is important, and can be tremendously helpful.

After the necessary paperwork has been filed and the case is underway, the parties will be required by North Carolina law to go to mediation to attempt to work out their custody disagreement before the case will be scheduled for trial. Parenting classes may also be ordered, depending upon the circumstances. If mediation isn’t successful in helping to resolve the issue, the court will ultimately make the decision, and the parties will proceed with presenting their evidence to the court.

When a court is making a custody determination, North Carolina law requires that court to make its decision with the “best interests” of the child in mind. Understandably, we are often asked – what exactly does this mean? It’s a good question. Before we dive into the nuts and bolts of the best interest standard, it’s important to keep in mind that generally, if both parents are involved and active in the child’s life – if both parents are good parents who nurture the child and set a good example, then a judge is going to have a great deal of latitude in making a decision on custody, and will typically try to ensure that the child gets to spend time with both parents.

While the court does have a great deal of latitude and discretion in determining what is in the best interest of the children when making a custody termination, some of the factors that it might consider include:

• The home environment that each parent is able to provide to the child in terms of being able to nurture the child, spend time with the child, and provide for the child’s mental, physical, and emotional well-being;

• The “moral fitness” of each parent – including any misconduct in the past in order to help determine how that parent might behave in the future;

• The parenting plan that each parent wants;

• The day-to-day routines and lifestyle of the children in the past;

• Whether or not any domestic violence or other misbehavior has occurred in the home at the hands of either parent;

• Any history of substance abuse by either parent;

• The wishes of the children, if they are of an age to provide a rational expression as to their wishes;

• The amount of time that each parent is capable of devoting to the child; and

• Any other factors the court considers relevant to his determination.

As we noted very early on in this guide, gone is the “tender years” doctrine that gave a preference to the mother over the father. Today, there is no preference in the eyes of the law – instead it is generally accepted that it is healthy and beneficial for the child to receive love and care from both parents and to spend time with both parents when possible.

As the court attempts to make its determination as to what is in the best interest of the children with respect to custody, it will examine the conduct of both parties, and the evidence presented by the parties including the testimony of witnesses, and any pertinent family history. As noted, the court may also choose to interview the children if they are of an age where they are able to express a rational opinion. Depending upon their ages and the family dynamic, the court may choose to interview them privately in chambers or in the presence of the parents.

During the course of a custody hearing, each parent is entitled to present his or her own witness testimony. Witnesses often called by the parents may include:

• Family members;

• Teachers;

• Daycare workers;

• Friends;

• Religious leaders;

• Counselors or therapists;

• Coaches;

Anyone else whom the parent feels might have beneficial testimony to present on his or her behalf.

In addition to witness testimony, another important aspect of presenting a custody case to the court will include documentation of anything that each parent believes is pertinent to demonstrate his or her her relationship with the child and why he or she should have the custody arrangement that is being requested.

What type of evidence might this include? In short, anything that brings your parent-child relationship to life for the court. It’s important to keep in mind that while your own testimony is important, it only goes so far. Ultimately, judges rely on evidence in making their decisions. Your own opinion will only go so far without evidence to back it up. This evidence could be as simple as a journal or calendar that includes a list of all of the dates and times you drive your child to and from activities or medical appointments or to school. It might include pictures of you and your child engaging in your day-to-day routines together – things like going to baseball practice or attending parent teacher conferences or scheduling play dates at home with friends. These may seem like minor activities but for the purpose of showing the court your involvement in your child’s life they are important.

On a more serious note, if you have negative evidence regarding your spouses interaction with the child – for example police reports documenting visits to the home for incidences of domestic violence, or verbally abusive text messages or emails, you will want to save those things to present to the court as well. Essentially, your goal is to paint for the court the most complete picture possible of your relationship with the child in order to support the parenting arrangement that you feel is in the child’s best interest.

As noted, typically, though it is not always necessarily the case, the older child is, the better the chance that their preferences will carry some weight in the case. It is important to keep in mind however, that even if a child is older, a court will often look not only at the child’s preferences but also the reasons for those preferences.

Imagine, for example, that a 17-year-old girl expresses a wish to live with her father, but later when questioned further about her preference states, “My dad’s a lot more relaxed than my mom. There aren’t as many rules in his house. I get to stay out as late as I want and I can go out with whatever friends I want to.” For understandable reasons, this preference is likely to carry far less weight than a child who states, “I want to live with my mom because she doesn’t yell at me like my dad does. I don’t feel afraid when I’m around her, and she always helps me with my homework and make sure I get to my activities on time.”

Any court that asks a child about his preferences will and should look at the reasons behind those preferences. If you feel that your child’s preferences may be a significant issue in your custody dispute, it is always important to speak to your attorney about that beforehand so that the two of you can make a plan to address that issue in the best way possible for your case.

Sometimes, despite the evidence presented by the parties and even the testimony of the children as to their preferences, it can be particularly difficult for a court to make a determination as to custody. In these cases, a court may decide to bring in an outside custody evaluator, or to appoint a guardian ad litem.

A guardian ad litem is a third-party, typically an attorney, who is appointed to represent the interests of a child whose parents are involved in a custody battle. Certainly, appointment of a guardian ad litem is not always necessary in every case. They are usually appointed in a particularly contentious custody dispute or when the child is believed to be at some risk of harm or of not having their rights properly protected. A guardian ad litem will typically investigate the issues involved in the custody case and present testimony regarding their findings. That testimony might concern things like the living conditions at the home with each parent, any troubling behaviors exhibited by the parents or children, any observations about the parents’ interactions with the children, and any other evidence that the guardian ad litem believes is pertinent to the case.

A custody evaluator, by contrast, is an outside third party appointed by the court and does not represent anyone in particular in the case. The job of a custody evaluator is to gather evidence and testimony – it may be from family members, friends, coaches, teachers, babysitters, or others who know the family and have observed their interactions. The custody evaluator will then present his or her findings to the court for purposes of helping the court to make a decision.

Ultimately, after hearing all of the evidence put forth by the parties, and taking into account the opinion of any third-party evaluators appointed by the court, the court will issue a custody order. This custody order will set forth the court’s findings and directives with respect to the custody arrangement that it believes is in the best interest of the children involved. It will specify which parent will be the primary custodian, what the custody sharing or visitation arrangement might be, and any other pertinent details with respect to the circumstances of the parties.

It is important to remember that once this order is issued, it is binding upon the parties, and they must follow its directives until such time as it is later modified, if ever. A court order is not something that is merely guidance – it is a legal directive that the parties must comply with. As a result, it is important to be certain that having a court determine the issue for you is truly the route that you want to take before you proceed with doing so.

If you need to speak with an experienced child custody attorney in Huntersville NC, contact Adkins Law to arrange a consultation. Adkins Law can analyze your custody situation in detail and help you make a path for moving forward.