Child Custody and Visitation

At Hopper Law Firm, we believe that the decision as to who gets custody of a child should be decided between you and your spouse. At the same time, we understand that it is an emotional decision, and we are committed to ensuring open and honest dialogue and feedback.

Custody Defined

Custody is the legal responsibility for the care and control of your child (under age 18). The best people to determine who gets custody of your children and what visitation arrangements should be made are you, the parents. As parents you can decide by entering into a parenting agreement.

For international matters, see Hague Convention and International Custody.

Parenting Agreements

A parenting agreement is a document or contract between the parents of a child that is signed and notarized, that sets forth the legal and physical custody of the minor child(ren). It will set forth, among other things: a reasonable or structured visitation schedule (see below); the amount of child support to be paid; which parent pays for insurance; the educational training of your children; the religious training or other mortal considerations for the children; extra-curricular activities of the children; whether or not the parties will pay for college; the medical, dental and psychological treatment of the minor child, and who received the tax benefits of support.

Initial Considerations

Both legal parents have an equal right to the legal and physical custody or the minor child. It is always best to determine child custody and visitation prior to separation. However, at the time of separation it is mandatory that each party consider the child’s needs and the rights of each parent to provide for the care custody and control of the minor children when determining which parent has initial temporary custody.

This interim period should be of short enough duration that a status quo against the non-custodial parent will not be created to the detriment of the non-custodial parent. Never withhold visitation of your children from a parent absent the threat of immediate physical or psychological harm to the minor child.

Court Proceedings for Custody

If you do not agree, then the either party may file a complaint with the court for temporary and permanent physical and/or legal custody of the minor child(ren). (Note: the discussion in this section relates to the determination of visitation between two biological parents only and not custody determination between grandparents and one or more of the parents, or between third parties and grandparents and biological parents.)

Since North Carolina follows a family court system, a judge will be assigned for your matter and will entertain a variety of factors in deciding custody, except preference based upon sex of the party. There is not a preference of granting custody to a party based upon the makeup of the party.

All the factors considered by the court will be used to determine what is in the “best interest” of your minor child. You child’s best interest is the "polar star" of custody. For instance, the court will consider the age of the child, the child’s education level, the child’s extracurricular activities, the child's medical, psychological, or dental needs, location of the parents relative to each other and the minor child’s school, any allegations of child abuse, use of legal or illegal intoxicating substances, heath and age of the parents, religion, and the non-marital relationships of each party, among others.

The first step after filing a custody action is court ordered mediation. Both parties are ordered to attend mediation to determine if a neutral third party can help craft a custody agreement. If mediation fails, the parties will be required to attend a court ordered parenting class. The court will not allow a permanent custody hearing unless the parties have completed a court ordered parenting class. Failure to attend will subject the party who failed to attend to be held in contempt of court, which could subject one to a civil fine and/or jail time.

Terms and Types of Custody

In North Carolina, there are several different custody terms that are used interchangeably:

Temporary – The duration of an agreement entered into between the parties or ordered by the court pending the determination of final custody. The first step in a custody action if an agreement is not reached in mediation is the determination of temporary custody.
Legal – This gives one or both parents the right to make legal decisions for the child regarding education, health care, religion and his or her general welfare. Sole legal custody is when only one parent can make these decisions. Joint legal custody awards that right to both parents.
Physical – This is the location of where the minor child resides. Sole physical custody is when a child lives with one parent, and the other has visitation rights. Joint physical custody occurs when a child is able to reside with each parent for a substantial amount of time during the course of a calendar year.
- Visitation rights – In a separation agreement on orders of the court the parties may see the term "primary physical custody," with the other party having secondary physical custody in the form of visitation. This is essentially the same as saying one parent has sole physical custody, with the other party having visitation. In this context, visitation in and of itself is a form of physical custody.
  - In a separation agreement, visitation may be identified as “reasonable visitation as agreed between the parties”. While this is acceptable in a perfect world, and the best place to start, it is more important to have a fall-back position or structured visitation schedule.
  - The court usually likes to set a visitation schedule for the child to spend time with the non-custodial parent. Fixed schedules can include sleepovers, weekends, weekday evenings, shared holidays, school vacations and summers. Keep in mind the agreement or court order needs to be flexible enough to cover the needs of the children as they get older and as their own interests change.
  - A judge may order supervised visitation if the safety of the child is an issue. If there has been domestic violence between the parents, a judge may also order that the exchange of the child take place in a supervised setting or in a public place.
    - The payment or non-payment of child support does not control a party’s right for visitation. A party has the right to visit with his or her child(ren) regardless of the status or compliance with payment of child support or other obligations.

If you have children and are ending a marriage, Contact Us today for more information on custody and visitation and to schedule a consultation with one of our experienced Family Law attorneys.

Prior to your appointment, you may wish to download and complete our Family Law Intake form to bring with you when you come.

Areas We Serve

The attorneys of Hopper Law Firm have practiced law predominantly in Raleigh, North Carolina (Wake County) and the greater Triangle area since 1994. However, depending upon the nature of the case, we often serve clients in the surrounding counties, including: Durham, Chatham, Orange, Johnston, Franklin, Harnett, Guilford, and Cumberland.