Buckle up! If you’re ready to learn about how child custody works in North Carolina—and, generally speaking, in most jurisdictions—there are a few things you need to know right off the bat. This chapter will set you up with a roadmap of where you’ll be going, what you’ll be learning, and the vocabulary you need to understand the rest of the book.
Before we go any further, we do have to give you a quick disclaimer: while this book includes general legal information, this book does not offer legal advice. To get advice about your specific situation, you’ll need to talk to a licensed and qualified attorney, preferably one who specializes in divorce and child custody law in North Carolina. What this book can do is give you enough of an understanding about the process and the terminology involved so that you can make an informed decision about how to proceed. Plus, if you do get professional help, this book will give you the background you need to use your attorney’s time wisely.
Speaking of terminology: in this book, we’re going to refer to your “child” or “children” interchangeably. The content of this book doesn’t depend on how many kids you have, so don’t think we’re not talking to you if you only have one child and a particular section uses the word “children.” (Or vice versa.)
Okay, now that that’s out of the way, we’re going to dive right in. In this chapter, we’ll give you the broad brushstrokes of what a custody determination looks like. That includes:
- Why do you and your ex need to work together on custody decisions?
- What does all the legal jargon about “custody” actually mean?
- What’s the difference between a custody agreement and a court order?
- Do you need to go to court at all?
Let’s get started with a critical issue that will set the tone for this book and, by extension, your entire custody determination.
The Importance of Working Together as Parents
Listen, we know. For many couples, “working together” isn’t their strong suit. You’re probably not getting a divorce because you were such a great team, right?
You might be feeling the urge to dig in your heels and make the other parent pay for whatever wrongs you’ve suffered. You may believe that the last thing you want to do is cooperate or play nice with your soon-but-not-soon-enough-to-be-ex.
That’s perfectly normal. It’s also the wrong approach.
Working together during your divorce has the potential to provide you (and your whole family) with huge—and tangible—benefits.
You might be thinking, “Well, I could do it, but my ex? No way! That’s why we’re getting a divorce.” But the truth is that you don’t need your ex to be a willing partner. If you start to cooperate, he or she will be dragged along for the ride—and you’ll both come out better for it.
During your divorce, a cooperative and forgiving spirit will get you closer to what you want than anger or stubbornness will. Regardless of whether you and your ex are locking horns over child custody, property division, or anything else, there’s a benefit to not sweating the small stuff. If something doesn’t really matter to you, just let it go.
Generations of grandmas everywhere are right about at least one thing: you catch more flies with honey than you do with vinegar. Nowhere is this truer than during a divorce. The vast majority of divorce cases in North Carolina—as many as 95 percent—are settled through cooperative efforts outside of a courtroom. That saves both participants time and money—and that’s time and money you can both invest back into your children.
Now, if you do end up in court—and probably even if you don’t—you’re going to run into a lot of specialized legal terms that have specific but flexible meanings. To ensure that you keep everything straight during discussions about custody, let’s review the primary legal terms that you should know.
Legal Terminology You Need to Know
Before we launch into explaining what specific terms mean, we need to step back and fill you in on a little secret about custody terminology: most terms can mean whatever the parents or the court want them to mean. If you draft your own agreement, you can refer to things differently than we have here. Just be sure that you and your co-parent are on the same page. That means you need to actually discuss what these terms mean as you use them, and you need to put those definitions in your agreement. If you have a court order, then your individual judge’s definitions are the ones that matter.
So why are we bothering to define terminology at all? Well, for starters, the definitions we’ve given here are the way that many courts use these terms. That makes this section a useful starting point to get you thinking about the terms you’ll see or the words you’ll want to use. We’re just warning you not to get hung up on generic terminology; it may be different from the terminology in your case.
The first term you’re going to hear—a lot—is the “best interests of the child.” This should be your guiding light as you make decisions about custody, visitation, support, and everything else involving your child. Everyone’s main objective is (or at least should be) to act in the best interests of the individual child. That doesn’t mean your best interests, or your ex’s, or what the lawyer thinks sounds like a great idea. It doesn’t mean you get to punish your ex by withholding visitation. It means you try, all the time, every day, to do what is best for your children.
Still with us? Let’s look at the different types of custody that you’ll hear about.
Physical custody is what it sounds like: who has the child physically in their care? You might designate one parent as the primary physical custodian, giving the other parent visitation rights, or you might want to have joint physical custody, where you share time as close to 50–50 as you can manage. Bear in mind that physical custody doesn’t mean that the child has to be right there in your sight! Your kids will still go to school, spend time with their friends, and play sports.
Legal custody is the ability to make decisions about what happens in your child’s life. Having legal custody gives a parent the right to make decisions about emergency or long-term medical care, education, cultural and religious upbringing, and more. Usually, both parents will share legal custody. When this happens, parents need to also create a tie-breaker mechanism so they know what to do when they disagree about something.
Joint custody means that both parents share custody. Its opposite, sole custody, means that only one parent has that type of custody. These terms are generally used in combination with physical and legal custody. For example, “joint legal custody” means that both parents share the ability to make decisions about the child’s medical treatment and education. “Sole physical custody” means one parent has primary custody over the child; that parent doesn’t have to split the child’s time with the other parent. (This won’t be a good idea in most situations, of course; children benefit from continuing their relationships with both parents, as long as those relationships are healthy!)
Visitation generally refers to time that the child spends with the parent who doesn’t have primary physical custody. A typical schedule might have the child visiting with the noncustodial parent on weekends and during school vacations, with holidays divided fairly between both parents. If your children split their time pretty equally between both parents, you might not refer to visitation at all. Again, it’s how you—or your court—define terms that really matters.
There’s one other term that divorcing parents need to know about, and that’s separation. Separation is not the same as divorce! In North Carolina, unlike in many other states, there’s a two-step process to legally ending a marriage. The first step is separation, which begins on the day that you and your spouse stop living together. You don’t need any official paperwork for one of you to move out, but you’d probably be wise to get it or to document the day in some way. After one year and one day of legal separation, a couple can enter a divorce, which is, by then, nothing more than a change in marital status.
We’re not quite done with terminology, though. Let’s look at the different types of documents that define custody arrangements.
Establishing and Enforcing Custody
When it comes to establishing how your specific custody works and enforcing those rules, there are two general types of documents: agreements and orders.
Agreements, perhaps obviously, are between you and your co-parent. You might reach an agreement with just the two of you, or you might involve an attorney or a mediator. However you get to an agreement, it’s a private contract between the two of you, just like any other contract you might enter.
Orders, on the other hand, are official court rulings that can be enforced by court action. For example, if one parent disobeys a court order, he or she could be held in contempt. There’s also a hybrid of these two, which happens when parents reach an agreement and then ask the court to enter it as an order of the court. We’ll get to that in a second.
To better understand how agreements differ from order, let’s look at one common type of agreement: a separation agreement. A separation agreement sets out, in detail, how you and your ex will divide your property, whether and how much alimony or support will be paid, and how child custody will be handled. A separation agreement can protect you from future misunderstandings and changes in your living situations. While some couples negotiate and write everything themselves, most hire an attorney to write their separation agreement. Don’t underestimate the importance of getting your separation agreement right! You may paint yourself into a corner without realizing it, only to find out years later that you can’t change your custody arrangement or increase your ex’s support payments because you agreed not to.
There are two key distinctions between a separation agreement and a separation order.
First, as we mentioned above, an order is enforced differently than a separation agreement. If you have a court order on child custody and the other parent begins to violate that order, you can file a motion for contempt. The court then has the powers of contempt—including jail time—to compel the other parent to get on board with complying with that order. If you only have an agreement without an order, you can sue for breach of contract, though that’s a difficult—not to mention expensive—process. The alternative at that point is to file a new court action for child custody. That means starting from scratch and asking the court to enter an order about your custody rights.
Second, orders and agreements differ in how they can be modified. With a court order, if something changes or if your old situation stops working, you need to file a motion to modify the order. That puts it back in the court’s hands to change the terms of the order. With an agreement that isn’t memorialized in a court order, you and your co-parent can change your minds and change the agreement any time you want. That’s done through an amendment, which is basically a new clause that replaces a previous clause. You’ll both sign it again in front of a notary, and presto change-o, there’s your new agreement. If you can’t agree on the change, you’re back to filing a lawsuit for a new court order on custody.
Now, what about the hybrid option? This is called a consent order or a consent decree, and it’s what you get when you and your co-parent negotiate an agreement and then ask the court to enter it as an order. The advantage of a consent order is that you and the other parent—not the judge—get to work out your terms and schedule as you see fit. You get to maintain control over that process and work together amicably (assuming you can do that).
Once you’ve reached that agreement, you and the other parent file a lawsuit for child custody and ask the judge to enter your agreement as a court order. This is usually a straightforward process. Once the judge signs your agreement, it is an enforceable court order. That means you have the benefit of being able to file for contempt if the other parent violates it. Note that as an order of the court, a consent order can only be modified through a motion to the court. That motion must show that there has been a “substantial change in circumstances” that affects your minor children’s welfare. Without a substantial change, the court won’t modify the order.
Now, what if you were never married to your child’s other parent? You may not need a separation agreement, but you can still enter a parenting agreement (also known as a custody agreement) or seek a custody order from the court. These formal arrangements, just like a separation agreement or order, help ensure stability and predictability in your children’s lives. Whatever it’s called, the document governing your child custody should include at least the following areas:
- primary custody of each child;
- visitation with the noncustodial parent;
- division of holidays, school breaks, or other special occasions;
- transportation between parents;
- medical care;
- education and schooling;
- cultural and religious upbringing; and
- financial aspects of childcare, such as child support and insurance.
Before we leave this section, let’s circle back and talk a bit more about enforcement, specifically through contempt. Violating a court order—whether it’s related to custody, visitation, child support, alimony, or another family law issue—can result in a finding of contempt of court and even jail time for the offending party. Contempt is only available for a party’s “willful violation of a court order.” That means that before anyone can be held in contempt, they have to have been (1) ordered to do something, (2) had the ability to do that something, yet (3) deliberately and intentionally failed to do so.
Contempt may be civil or criminal. When a court uses a contempt proceeding to force a party to obey an order, and that person can avoid being found in contempt by complying with the court’s demands, then the contempt is civil. Criminal contempt, on the other hand, allows a court to preserve its authority and punish disobedience of its orders. Criminal contempt is, perhaps obviously, a crime, which means that the accused has constitutional rights that must be protected.
Again, contempt is only available if there is an order of the court requiring someone to do something. Contempt is the enforcement mechanism that courts use to make people comply with their orders—or suffer the consequences. Of course, there’s a limit to what a civil court can “make” anyone do. But a court can make not complying with an order very unpleasant, including by sending the person in contempt to the local jail.
This is usually about the time that parents start to wonder whether there’s a way to avoid this whole court thing. I mean, who wants to run the risk of going to jail over a child custody issue?
Do You Really Need to Go to Court? Can’t You Just Work This Out Informally?
Now that you know a little about how custody arrangements work, you might be hoping that you can avoid this whole lawyer-and-courtroom mess altogether. Maybe you’re thinking, hey, you and your ex get along well, even now, and your kids are in pretty good shape, all things considered. Can’t you just work this out between yourselves without getting lawyers and judges and everyone else involved in your private business?
Maybe.
But even if you can, you’ll benefit from reading through this whole book. Even if you’re absolutely certain that you can reach an agreement about custody outside of court and that you’re never going to see the inside of a courtroom, you need to know what’s in this book. We’re going to explain what the entire litigation process is like and the factors that a court will consider for two main reasons.
First, even if you do work things out informally, you want to be sure that you think about everything that a court or a lawyer would consider. Have you thought about holidays? Medical expenses or insurance? Who’s going to pay for tutoring or extra classes? You should. You just can’t predict how things are going to go in the future. That’s why it’s always good to prepare for every possibility—especially when it comes to your kids.
And that brings us to our second reason: you need to have some awareness of the process in case you do end up embroiled in a messy court case. You might think it’ll never happen, but you know as well as we do that you cannot ever—ever—predict the future. (If you can, you don’t need us or this book!)
It’s a sad truth, but sometimes litigation is necessary. No matter how good it’s been between you and your child’s other parent, and no matter how much you try to cooperate, you never know when it could all fall apart. Something could happen while your child is in the other parent’s care. If your child is injured in a way that you think was entirely avoidable, will you suddenly change your tune? You could find yourself filing a lawsuit in short order. Or the other parent could be the one to start a court proceeding. What if he or she hates the idea of you moving on and engaging in a new relationship? What if that kicks off a complicated and argumentative court proceeding?
These are your kids we’re talking about. That means you need to have an idea about what the process actually is and how it works before you find yourself up a creek, panicking because you don’t know what’s happening or what to do next.
Remember, too, that you can work with a lawyer without going to court. As we said at the beginning, the vast majority of couples in North Carolina opt for private settlement instead of duking it out in court and leaving their futures—and those of their children—up to a judge. But all of those decisions start with information, which is what you’re here to get.
So, now that you’ve got a background in the language of child custody, let’s start digging into the substance of how to actually work it out. Remember how we said you’d be hearing a lot about the best interests of the child? That’s what the entire next chapter is about.
