Q. What can I do to improve my chances of getting primary custody?
A. There is no formula for determining child custody other than the best
interests test. However, in order to improve your chances of obtaining
custody it is very important that you do not place your children in the
middle of conflict with your spouse. You should not refer to your spouse in
a bad manner in front of your kids. You should not prevent your spouse
from seeing your kids if they currently reside with you unless your spouse
poses a real danger to your kids, or a court has issued an order
preventing your spouse from seeing your kids. USING YOUR CHILDREN
AS A WEAPON TO GET "REVENGE" ON YOUR SPOUSE IS A VERY BAD
CHOICE! You should not engage in drug use or excessive alcohol
consumption while your kids are with you. You should never have
boyfriends or girlfriends or any other person with you whom you have
intimate relations with but are not married to spend the evening overnight
with you while your kids are present. And of course, acts of domestic
violence can not only land you in jail, they can severely hurt your chances
of getting custody.
Q. What is the difference between "physical custody" and "legal custody?"
A. Physical custody refers to where the children reside. This is the most
common decision that a judge has to make in a custody case. The parent
with primary physical custody is the parent with whom the child lives with
most of the time and who will make the day-to-day decisions for the
child.
Joint legal custody is assumed to be held by both parents in North
Carolina regardless of the custodial arrangements. Legal custody refers
to a parent's ability to make choices regarding the child such as health
care, passports and access to educational records. Only in rare cases will
a court deny either parent legal custody.
Q. How can I change a custody order that has already been entered?
A. Once a court order for custody has been entered, it can only be
modified by a court after the party requesting modification has shown
that a change of circumstances has occurred since the entry of the last
court order that affects the child in a way that would justify a change.
This could involve questions of the child's welfare in the care of the other
party, education, relocation or other facts.
Q. How does moving affect custody?
A. Obviously, if parents live far apart, custody and visitation schedules will
change. A parent who sees a child every other weekend and one night a
week will not be able to continue on that schedule if the child moves far
away. Either parent may move to modify a custody order if relocation of
either is inevitable. In these cases, the court must consider whether the
move is in the child's best interest based on a number of factors including
who already has custody, their reasons for moving, the opportunities for
the child in the present location versus the new location, ties the child has
to the community and family in each area and other factors. The court
cannot tell a parent where to live, but they can decide which parent
should have custody when all factors are considered.
Q. Can children testify as to which parent they want to live with?
A. Children are permitted to testify in custody cases, although it is rarely a
good idea because judges typically don't like it due to the potential
emotional trauma to the child. However, under the law, there is no
general prohibition against children testifying and the wishes of a child
are proper factors for a court to consider. Older children are better
candidates to testify than younger ones. In lieu of testimony, the parties
may stipulate that the judge speak with children in chambers rather than
in the courtroom where the child has to face both parents. In these
situations, the evidence is not on the record and the attorneys cannot
question the children.
Q. Can I terminate my own parental rights?
A. No.
Frequently Asked Questions About
Child Custody In North Carolina
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The Spagnola Law FIrm in Greensboro, North Carolina, represents clients
throughout the Piedmont Triad area, also including Gibsonville, High Point, Jamestown,
Oak Ridge, Pleasant Garden, Sedalia, Winston-Salem, Asheboro, Liberty, Whitsett,
Kernersville, Reidsville, Eden and Randleman in Guilford County,
Rockingham County, Randolph County and Alamance County.