Waxhaw Child Custody Attorneys

Legal Custody vs. Physical Custody

It's important to understand the difference between physical and legal custody as you move towards your custody battle.

• Physical custody defines your right to have your child under your physical care. Generally, this means a parent's right for their child to live with them.
• Legal custody defines your right to make decisions about (or for) your child, such as what medical and dental care they get, where they're educated, what cultures and religions they're exposed to, how they're disciplined, etc.

Typically, courts prefer to award parents with a joint custody arrangement. In a joint custody arrangement, both parents have physical custody, although not always equally. For example, if your child lives with you 55% of the time and your co-parent 45% of the time, you still have a joint custody arrangement. Whichever parent the child lives with a majority of the time is the "custodial" parent and has primary physical custody, and the other parent is "noncustodial" and has secondary physical custody.

Parents who are on good terms or believe each parent should play a significant role in their child's life often try to establish an equal custody arrangement. In an equal child custody situation, each parent spends the same amount of time caring for the child.

In contrast, it's also possible for one parent to get sole custody of the child. This often happens when the court deems that only one parent is fit to act as a caregiver for the child. In sole custody arrangements, the parent without custody may be able to obtain visitation or supervised visitation rights so they can still see their child.

How Do I File for Child Custody in North Carolina?

To begin your custody case in North Carolina, you must file a custody complaint with the appropriate county court. A custody lawyer can help you file your complaint successfully. You can file a custody complaint either at the same time you file for divorce or at a different time depending on the circumstances of your case (many spouses take care of the custody process while separated since North Carolina requires couples to separate for at least a year and a day before they can obtain an absolute divorce).

After you file your complaint, you must serve it to your child's other parent. Using a sheriff or certified mail carrier is usually the best way to serve the other party.

In most cases, the court requires parents to attend the Child Custody and Visitation Mediation Program before allowing them to continue a custody battle in court.

How Does Mediation Work In North Carolina?

During mediation, both parents will attend an orientation class that covers the ins and outs of the mediation process and prepares them for life as co-parents. Afterwards, a mediator will work with the parents for up to two hours. The mediator tries to facilitate a mutually beneficial compromise between parents. It's important to note that mediators cannot give legal advice.

During mediation, you'll negotiate with your co-parent on various topics, including:

• How you want to handle physical custody (do you want to share time equally, should one parent get physical custody, what days of the week will your child spend with each parent, etc.).
• How you want to take care of special circumstances (what happens when you go on vacation, how do you split time on holidays like Christmas and Thanksgiving, etc.).
• How you want to handle legal custody (what health insurance the child receives, where they go to school, how you'll share those expenses, etc.).
• Boundaries you want to share for the child (academic boundaries, behavioral boundaries, disciplinary boundaries for the parents, etc.).
• Anything else you think is important (how the parents should behave towards one another, terms for modifying the custody order, etc.).

If you and your parent agree on terms for your child custody arrangement, you can work with your lawyer and mediator to develop a Parenting Agreement, which both parents must sign.

A court will then examine the parenting agreement to ensure it's legally sound. If the judge presiding over the case approves the agreement, they'll sign it, finalizing the custody order.

What Do The Courts Consider During A Custody Battle?

On the other hand, if the parents can't reach an agreement during mediation, they must attend trial in court. During the trial, your custody lawyer will supply evidence on your behalf, defending your parental rights and advocating for a positive outcome for your child. The child's best interests always come first during custody battles.

Courts consider the following factors during custody trials:

• The parent's living arrangements. The court needs to ensure that a parent's home is suitable for their child before awarding custody.
• Each parent's ability to care for the child and history of parental conduct. For example, if one parent has a history of child neglect, the court may refuse them custody. The court may also evaluate each parent's lifestyle and employment—if a parent works nightshifts or needs to travel for work consistently, they may struggle to provide their child with consistent care.
• The child's relationship with each parent. The court may ask the child for their preferences during the custody battle. Generally, the older and more mature the child is, the more heavily the court will weigh their opinion.
• Any other factors the court considers important. For example, the court may take into account whether the child would need to switch schools to live with one parent, and if so, how difficult that would be for the child. Your custody lawyer can help you determine what factors the court will consider during your custody case.

After hearing arguments from both parties, the judge will develop a Parenting Agreement they believe is equitable and suits the child's best interests on behalf of the parties.

What Makes a Parent Unfit?

As we mentioned earlier, the court may not award custody rights to an "unfit" parent. Courts regularly use the following factors to determine whether a parent is unfit:

• Whether a parent can set age and maturity-appropriate boundaries for their child;
• Whether a parent understands a child's emotional, physical, and mental health and needs;
• Whether a parent has a history of poor child care or abuse;
• Whether a parent has a history of substance abuse;
• Whether a parent is mentally and physically capable of caring for a child;
• Whether a parent tries to manipulate the other parent or slanders them in an attempt to gain custody.

Can I Change My Child Custody Order?

If you or your child's co-parent experience a substantial change in circumstances (such as a loss of income, a change in behavior, etc.) that renders your custody order inaccurate or unsustainable, you can file a Motion to Modify with the court that issued the order.

Once you file a Motion to Modify, you must prove in court that a substantial change in circumstances has occurred, and that changing the terms of your custody order is in the best interests of the child. If the court rules in your favor, it will modify the custody order to reflect your current circumstances more accurately.

Schedule an Appointment With Our Waxhaw Custody Lawyers

Having an experienced child custody lawyer is essential if you want to secure your child's future. Our Waxhaw child custody attorneys can help you protect your parental rights and pursue your child's best interests in and out of court.

To schedule a consultation with our team or learn more about our services, contact us online or via phone at (704) 286-0570.