A HISTORICAL OVERVIEW OF CHILD CUSTODY IN NORTH CAROLINA

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Often, in order to come to the best understanding of any topic, it is helpful to learn a bit about the history of that subject – how it came to be what it is, and why. Understanding the history of something in which we find ourselves involved can give us important perspective and understanding that we might not otherwise have. It is no different with legal matters, child custody included. Understanding the history of any topic gives us a better grasp of where we are today and why. Knowing how courts used to decide cases gives us an important perspective on how jurisprudence has shifted over the years– what the important factors used to be, and what they are now. As with so many legal and historical matters, the history of child custody is an interesting and complex one. As societal perspectives have shifted and culture has evolved, so also has the state of child custody in our country.

Children as Property of the Father
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When Colonial Americans first settled in the United States, they followed the English common law at the time with respect to child custody.  That common law typically granted custody of the children to the father following a divorce. This preference arose from the traditionally historic belief that women were essentially property, and had very few individual rights. Most “rights” that women had were in name only, and were derived from their fathers and husbands. Fathers had the legal right to physical custody of their children, which in those times might have included not only their biological children, but also young servant children, and orphaned children belonging to relatives as well.  Often, the survival of a family depended upon the labor of all of these children, as well as the right to any earnings from the labor of their children, which might be very significant to the family’s finances. As a result, in the somewhat rare event of a divorce, the courts almost always awarded custody to the fathers.

With the rise of the Industrial Revolution, however, more and more families began to abandon the traditional farming lifestyle of the settlers for industrial jobs in factories and cities. This meant that fathers left the home during the day, while the mothers remained to take care of the children and run the day-to-day affairs of the household. It was at this point that fathers became more traditionally viewed as wage-earners, and mothers as caregivers.

It was also at this point in our history that “childhood” as we know it began to exist.  Children who, in previous generations, would have been sent out to labor on the farm or at a trade began to experience days that were more largely focused on school and play, under the watchful eyes of their mothers at home, while their fathers went to work. These shifting perspectives began to influence custody decisions as well, both in England, and in the United States, which though independent by this time, continued often to look to England for guidance and vision on some legal matters.

The “Tender Years” Doctrine

In 1839, England passed the Custody of Infants Act. This law gave judges the authority to use their own discretion in custody cases, and permitted mothers to petition the courts for custody their children up to the age of seven. As societal roles continued to change and perspectives continued to evolve, Parliament extended the age to sixteen, pursuant to what it referred to as the “Tender Years Doctrine”. That doctrine was essentially a way of formalizing the belief that in children’s early years, they are best cared for by their mother. This principle was adopted by the majority of states in the United States as well, and was thereafter the prevailing law for the majority of the next century.

North Carolina, like the majority of the states in the country traditionally subscribed to the tender years doctrine. Essentially summarizing the doctrine in its holding in Spence v. Durham, 283 N.C. 671, 687, 198 S.E.2d 537, 547 (1973) the court stated:

It is universally recognized that the mother is the natural custodian of her young …. If she is a fit and proper person to have the custody of the children, other things being equal, the mother should be given their custody, in order that the children may not only receive her attention, care, supervision, and kindly advice, but also may have the advantage and benefit of a mother's love and devotion for which there is no substitute. A mother's care and influence is regarded as particularly important for children of tender age and girls of even more mature years.

This, indeed, was the prevailing belief and doctrine followed in the United States for nearly a century, until continually evolving cultural norms again precipitated a change. In the 1960s divorce rates began to surge, compared to those of previous decades. A number of factors played a role in this change, including the return of more women to the workforce, an increased interest on the behalf of child development experts in the important role that a father plays in a child’s emotional well-being and development, and the emergence of more egalitarian gender views, among others.

As all of these changes were happening, new conversations and debates about the role of each parent emerged. No longer was the mother seen as the only parent capable or willing to stay-at-home or provide primary care to the children. Indeed, father’s rights groups began to form across the country, as part of a larger ongoing movement for gender equality.

The Current “Best Interests” Standard

In 1977, the North Carolina General Assembly made the decision to do away with any presumption in favor of either the mother or the father, and officially adopted the best interest of the child standard. In pertinent part, that statute, N.C.G Gen.Stat. §50-13.2 states:

An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization, or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party and shall make findings accordingly. An order for custody must include findings of fact which support the determination of what is in the best interest of the child. Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent.
 
Essentially then, in the context of child custody matters, the focus on the child’s “best interests” means that courts are required to make decisions regarding custody and visitation with the overarching goal of ensuring the child’s security, happiness, health, and appropriate development into adulthood.

Under the best interest standard, courts have a significant amount of discretion in determining custody matters. On the one hand, it means that either party ideally has a fair and equal chance of obtaining custody, and that there is no preference for either party. And indeed, it is often ultimately in the child’s best interest to maintain a loving and close relationship with both parents. On the other hand, the equal opportunity for each parent to be awarded custody has also opened the door for what can often be bitter custody battles, as each parent tries to prove his or her case. Ultimately, the court ends up being faced with the often difficult decision of choosing a parent, and a household which will, in his or her judgment, best develop the child’s physical, mental, emotional, moral, and spiritual faculties. See In re Peal, 305 N.C. 650, 645, 290 S.E.2d 664, 667 (1982).

This understandably leads to the next logical question – what factors do courts consider when trying to determine what is in the best interest of a child? The answer is not necessarily definitive – in fact courts can consider a wide variety of factors – “all relevant factors” in fact. See In re Shue, 311 N.C. 586, 319 S.E.2d 567(1984).  While that’s a very broad and open-ended realm of possibility, some of the factors frequently considered include:

• The income earned by each parent;

 

• The involvement that each parent has had so far in the upbringing of their children;

 

• Which parent seems most likely to help their children grown morally and spiritually;

 

• The work schedules of each parent;

 

• The wishes of the child (if he or she is old enough to rationally and reasonably express a preference);

 

• The mental, physical, and emotional health of the parents;

 

• Any special needs that a child might have and how the parents care for those needs;

 

• Any pertinent religious or cultural considerations;

 

• Other children whose custody is relevant to the child’s custody arrangement (e.g. children from a previous marriage, half-siblings, or step-siblings whom the child is used to living with);

 

• The opportunity that each parent’s living situation might provide for interaction and involvement with members of their extended family;

 

• The opportunity that each parent might be able to provide for the child to continue in their current school and/or extracurricular routine;

 

• Any domestic abuse that may have occurred in the home;

 

• Any evidence of addictive behavior on the part of either parent;

 

• Any other factors that the court, in its discretion, believes relevant to its determination of the child’s best interests.

 
Certainly, this is not always an easy decision for the court to make, especially when both parents are very involved in their children’s lives and devoted to their well-being. Ultimately, when the court enters its findings of fact, it should seek to address all characteristics of the parties with respect to their physical, mental and financial fitness to care for the child. See Phelps v. Phelps, 337 NC 344, 446 S.E.2d 17 (1994). Generally, in North Carolina, it is public policy for the courts to promote and encourage parent time with the children by both parents, if possible. See N.C. Session Law 2015-278 (Senate Bill 519).

As the court seeks to determine what is in the best interests of the children, it might ultimately decide on any one of a number of types of custody arrangements. It should be noted and emphasized that while courts may decide upon and order certain arrangements, instead of requesting that a court do so, the parties are free to negotiate and agree upon an arrangement that suits them best, instead. That arrangement can ultimately be anything that the couple decides works best with their lifestyle and for the needs of their children, and will of course ultimately be more personalized and provide greater flexibility than a court-ordered arrangement might be. Regardless of what route parties ultimately choose, however, understanding the basics of custody arrangements can be helpful as you move forward toward the next chapter of your life.

If you need to speak with an experienced child custody attorney in Huntersville, NC, contact Adkins Law to arrange a consultation. 

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