When can child custody be decided and can it be modified?

The timeline for bringing claims or motions for child custody and visitation is long, stretching throughout a child’s minority. The child custody action can be brought either independently or it can be joined with an action for absolute divorce, divorce from bed and board, annulment, or alimony without divorce. With regard to absolute divorce, the custody action may precede or follow the divorce action; or it make also take place during its pendency. If the action for custody is brought independently, the contesting parties must already be separated or there must be a pending claim that would lead a judge to remove one parent from the parties’ residence. Custody will not be decided if the family is remaining intact. Even though the North Carolina courts maintain jurisdiction over minor children at all times for purposes of custody and support, you and your spouse may nevertheless contract with respect to custody. This possibility for avoidance of court proceedings often allows for an amicable resolution of difficulties between separating parties and assists the child in adapting to his or her new way of life by sparing the child and the parties the trauma of litigation. A properly drafted separation agreement would also provide you and your spouse with the flexibility to effect your own modifications of the custody portions (or any other portions) of the agreement through further written amendment. However, future modifications to a previously established written custody arrangement may not be so easy. That will depend on whether you and your spouse agree over the subsequent modification. If parents cannot agree in the future to a change that one parent or the child wants, the court would become involved if the dissatisfied parent sued. In such a case, where the parties had not previously litigated but had settled custody by prior written agreement, the court would make its own initial determination of custody and visitation without either party’s having to show changed circumstances affecting the welfare of the child. The court’s initial determination would be based, as always, on the child’s best interests.