Child Custody FAQs

One of the most emotionally trying parts of any divorce is determining child custody. However, the most important thing to consider in any child custody case is the best interests of the children.

At Plumides, Romano, Johnson & Cacheris, PC, of Charlotte, we always make this our top priority, whether you are seeking to create a child custody and visitation plan or you want to modify an existing one. Our goal will be to help your children maintain as normal of a life as possible to aid in the transition to a new parenting arrangement.

As only a handful of board-certified family law specialists in North Carolina, attorneys Michael Romano and Richard Johnson know how to handle these delicate matters with precision and care. They will help you find the best resolution for you and your children.

In nearly every case, it is better for parents to find consensus on parenting time that protects both parents' relationships with the children. We understand that there are some times where this will not be possible. When necessary, we will be ready to fight in court to protect your children and your parental rights.

Will my child have to testify in court?

In North Carolina, it is entirely in the judge's discretion as to whether the testimony of a child will be heard. A party must request that the child(ren) testify and/or speak with the judge and the other party can either consent to the request or oppose the request. If one party requests that the child(ren) testify and the other party opposes the request, the judge will decide if the child(ren) testifies. If both parties request that the child(ren) testify/speak with the judge, it is still the judge's decision as to whether the judge will speak with the child(ren) and/or allow the child(ren) to testify. If a judge determines that a child is of appropriate age and maturity to provide the court with helpful information, the court may order the child(ren) to testify. If the judge allows a child's testimony and if the parties agree, the judge has the ability to speak to the child(ren) in private, in the judge's chambers. The judge may require the attorneys for the parties to be present during the questioning or may require that the attorneys not be present during the questioning if the judge is going to speak to the child(ren) in chambers. If the judge allows a child's testimony and if the parties do not agree that the judge has the ability to speak to the child(ren) in private, in the judge's chambers, then the child(ren) must testify in open court. Typically, judges will do everything possible to prevent the child from having to testify in any capacity in an effort to avoid traumatizing a young child. As the child grows older and/or reaches the age of majority (18), the court may require him or her to testify in an open courtroom. These issues should be discussed with your attorney as you prepare for court and your concerns should be addressed thoroughly and completely with your attorney.

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What is the difference between legal custody and physical custody

It is important to understand the difference between legal custody and physical custody in North Carolina law. The parent with legal custody or parents with joint legal custody make major decisions about the welfare of the minor child, including school, education and religious issues.

Physical custody refers to each parent's ability to physically spend time and take care of the children. The children may live with one parent while spending a few nights with the other parent. Or the children may spend equal time with both parents.

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When can a claim for child custody be filed? Once a child custody order has been entered, can it be modified?

If there is no order or agreement by the parties resolving the issue of child custody, a child custody claim may be filed by any party at any time so long as the parties reside separate and apart. Custody is always modifiable by the courts. The courts have the inherent responsibility to protect the best interests of the minor children of this state. As a result, the Court is always willing to hear motions to modify any type of custody order that's been entered if certain changed circumstances can be shown.

A party moving the Court to modify a child custody determination has the burden of showing that since the entry of the last order, there has been a substantial and material change of circumstances affecting the best interests and welfare of the child(ren). Only if this burden has been met, may a court modify the previous order setting forth custody.

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Do grandparents have rights to custody and/or visitation in North Carolina?

Grandparents generally have standing to sue for custody of their grandchildren if they allege parental unfitness or child neglect, even if there is no ongoing custody dispute. However, even though grandparents may have standing to seek custody, they may not have standing to seek visitation under similar circumstances unless there is an ongoing custody dispute. Under current North Carolina law, grandparents may be granted visitation rights provided there is an ongoing custody dispute.

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What does visitation mean in North Carolina?

In general, visitation falls under the "custody" umbrella. Oftentimes, courts would enter custody orders that granted 'custody' of a minor child(ren) to one party and 'visitation' of the minor child(ren) to the other party. However, courts are moving in the direction of using the terms of primary and secondary custody. Primary custody is the term used to described where the child(ren) will spend most of his/her/their time whereas secondary custody is used to describe where the child(ren) will spend less time. In many cases, both parties are entitled to exercise visitation with the minor child(ren). You must keep in mind that each case is different and the court is empowered to order whatever type of visitation it believes is in the best interests of the child(ren).

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What is joint custody? What is sole custody?

There is no set definition in North Carolina as to joint custody or sole custody. Many people believe that joint custody represents a true sharing of time and expenses for their children. Joint custody may sometimes be further classified into primary and secondary custody or physical and legal custody. Sole custody is often thought of as a situation where one party has the primary physical and legal control over a child or children and the other party simply has visitation rights. Again, there is no set definition in North Carolina statutory or case law for joint or sole custody. Each case is different from the other and a court will make arrangements as it sees fit and which serve the best interests of the minor children involved.

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What is a custody evaluation and when should one be conducted?

A custody evaluation is when an objective third party is paid to assess each of the parents in order to assist the court in making a determination as to custody. Either party may ask the court to have a custody evaluation performed. As a matter of logistics, it is preferable to have a custody evaluation requested early on in the legal process so as not to cause unnecessary delay. Custody evaluations may take anywhere from a week to a month, depending on how in-depth the evaluation is. In addition, the evaluation may involve interviews with the parties as well as collateral witnesses and psychological testing of both parents and the children.

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What impact could dating have on child custody?

There could be ramifications from dating when you are involved in a child custody case. For example, if the person you are dating is considered by the court as someone who is not in the best interests of the child(ren) whose custody is in dispute, it could cause a judge to award custody to the other parent. A Court may determine that a new boyfriend or girlfriend is not a good influence on the child(ren) and should not be allowed around them. Courts are not in the habit of making moralistic rulings but a Court may determine whether a relationship is in the best interests of the child(ren).

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Do the North Carolina Courts favor one parent over the other in custody cases?

No. The tendency of the Court to favor the mother over the father has been formally abolished pursuant to N.C.G.S. 50-13.2(a). Therefore a Court's primary concern is make a determination as to who will "in the opinion of the Judge, best promote the interests and welfare of the child." N.C.G.S. 50-13.2(a).

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Do children get to decide who they will live with?

A court may take the wishes of the child into account when making a child custody determination but the Court must consider a number of different factors with the wishes of the child being just one of several factors.

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How is child support determined?

The first questions on the minds of many parents going through divorce are often: What will happen to my kids? How can I support them on my own? Will they get enough child support?

North Carolina has set formulas for the determination of child support; however, other elements are open to interpretation and often require the attention of a skilled family attorney to be properly assessed. For example, factors such as health care expenses and day care costs need to be taken into account when determining the final child support amount. Our lawyers carefully consider your entire situation and work hard to ensure you receive what you deserve or do not pay more than you should.

Guidelines in North Carolina apply to parties who have a combined income of less than $300,000 per year. Child support obligations awarded by the court must continue to be paid until the child is 18 years old or graduates from high school, whichever happens last. Child support payments are terminated if the child is emancipated.

Your tax income is not always the income used in child support calculations. Do not make the mistake of thinking you can deduct all of your business expenses to reduce child support obligations.

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