Why do I need a written agreement?
A separation agreement gives you the power to define custody arrangements; if you and your spouse can’t reach an agreement, you put that power in the hands of a judge.
Plus, unless there is some written document establishing custodial and visitation rights, the arrangements are subject to change at the whim of either parent. You or your spouse can try to change the status quo at any time simply by moving. Your spouse could even leave the state – as long as he or she wasn’t moving specifically to evade court jurisdiction – and it wouldn’t be considered abduction.
What if we really just can’t agree?
Then the court will decide for you. The judge will consider a range of factors: the age of the child (or children), the time each parent can spend with the child, the stability of the parents, abductions, child abuse and neglect, drug and alcohol problems, religion, non-marital sexual relationships… In other words, a big part of your life will be fair game, and past history can be used to predict future behavior.
So what’s the decision based on?
Plain and simple: what’s best for the kids. Custody will be awarded to the person who “will, in the opinion of the judge, best promote the interest and welfare of the child.” This legal language gives the judge enormous flexibility in considering and weighing all the various factors.
Can’t my child decide who to live with?
In North Carolina, the wishes of a child are “entitled to considerable weight” – but they aren’t the final word. In practice, as the child gets older, the judge may place more weight on his or her desires; still, the determining factor will remain what the judge feels are the child’s best interests.
What are joint custody and sole custody?
In general terms, “sole custody” means that the parent with possession has most or all of the decision-making authority; “joint custody” usually means that each parent will have some input. In reality, however, the terms “joint” and “sole” mean whatever the written custody document says they mean – it all depends on what else the document says, if anything, about decision-making.
If we share custody, does anyone pay child support?
Yes. Both parents are responsible for paying child support and there will always be a payment, except in the unusual case where each parent’s incomes and time spent with the children are exactly even.
Can I refuse to allow visitation if child support isn’t paid?
No. Legally these are completely separate matters – and this kind of retaliation can be very hard on a child.
Can I date?
That depends on your definition of “dating.” You would be well advised to consider two factors before deciding.
- Until you are officially divorced, sex with anyone other than your spouse is considered adultery in North Carolina – that’s a crime, and it could certainly affect your custody dispute (not to mention any other ramifications).
- Your spouse could use your dating relationship as a “weapon” against you gaining, or continuing to have, custody. These attacks are rarely considered in North Carolina, but could weaken your position if your spouse can show that your dating led to child neglect or inattention.
Okay, so I haven’t been a terrific parent. What can I do to improve my chances of gaining custody?
It’s never too late to become a good parent. If you can modify your less desirable behavior, or do additional things to make the grade, do it immediately. Recent, more extensive involvement with the child can help counteract a history of infrequent closeness.
