Custody and visitation in Charlotte, North Carolina

Along with Equitable Distribution, the issues of child custody and visitation can easily become one of the most complex within family court. Under North Carolina Statute, a court is allowed to inquire into any evidence that is in the “best interest of the child” to determine the proper child custody and visitation schedule of minor children.

When there is a dispute between parents for child custody or visitation, there are multiple third parties that a court may allow to intervene, which only complicates the process. Third parties can range from the Department of Social Services, the appointment of a Gaurdian Ad Litem, a Psychologist performing a psychological evaluation or even a Grandparent or close family relative intervening and attempting to obtain custody themselves.

Child Custody and Visitation becomes even more of a complicated process with the usual introduction of Temporary Parenting Arrangements, Mandatory Parenting Classes, Alternative Dispute Resolution, Protective Orders, and 50 B Domestic Violence Restraining Orders.

Don’t jeopardize your fundamental constitutional right to raise your child by not hiring a competent Attorney.

What this covers

• What’s the Difference Between Joint Custody and Sole Custody?
• How do I Obtain Emergency Custody in North Carolina?
• What is the UCCJEA, Uniform Child Custody Jurisdiction Enforcement Act?
• Can I Get Child Custody of My Grandchildren?
• Does the Court Prefer Mothers or Fathers?
• Can I Get Child Custody of My Grandchildren?
• Does the Court Prefer Mothers or Fathers?
• How do I Obtain Emergency Custody in North Carolina?
• What is the UCCJEA, Uniform Child Custody Jurisdiction Enforcement Act?
• What’s the Difference Between Joint Custody and Sole Custody?

Every custody decision in North Carolina runs through G.S. 50-13.2(a)

In North Carolina a custody order must “award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child.” That sentence, in G.S. 50-13.2(a), is the entire test. There is no statutory scoring system and no fixed list of considerations that decides the case for the judge. The district court hears evidence and decides which arrangement best promotes the interest and welfare of that particular child.

The same subsection does name considerations the court cannot skip. It requires the judge to “consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party.” It then requires that an order for custody “include written findings of fact that reflect the consideration of each of these factors and that support the determination of what is in the best interest of the child.” A custody order that states a result without those findings is exposed on appeal, because the appellate court reviews the findings rather than re-hearing the evidence.

Two further rules sit in the same subsection. Between the parents, “whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child.” And “joint custody to the parents shall be considered upon the request of either parent.” Considered is the operative word — a request obliges the court to weigh joint custody, not to order it.

Legal custody, physical custody and visitation are three different questions

Under G.S. 50-13.2(b) a North Carolina custody order “may grant joint custody to the parents, exclusive custody to one person, agency, organization, or institution, or grant custody to two or more persons, agencies, organizations, or institutions.” The same subsection provides that any order for custody “shall include such terms, including visitation, as will best promote the interest and welfare of the child.” Visitation is therefore a term of a custody order rather than a separate species of right.

Chapter 50 does not define legal custody or physical custody, but the distinction is worked into every parenting arrangement. Legal custody describes decision-making authority over matters such as health, education and religious upbringing. Physical custody describes where the child lives and the schedule under which each parent has the child. An order can be joint on one and not the other, which is why the labels people use in conversation rarely describe what the order actually says.

G.S. 50-13.2(b) also settles a recurring dispute about information. “Absent an order of the court to the contrary, each parent shall have equal access to the records of the minor child involving the health, education, and welfare of the child.” That access does not depend on which parent has physical custody.

Who may file a custody action, and where it is heard

G.S. 50-13.1(a) is deliberately wide: “Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child.” The same subsection provides that, unless a contrary intent is clear, “custody” includes “custody or visitation or both.” It also bars a claim to custody of a child by a person convicted under G.S. 14-27.21, 14-27.22, 14-27.23 or 14-27.24 where the child was conceived as a result of that offense, and G.S. 50-13.1(a1) requires a person instituting a custody proceeding ex parte who has been convicted of a sexually violent offense as defined in G.S. 14-208.6(5) to disclose that conviction in the pleadings.

Venue is set by G.S. 50-13.5(f): a custody action “may be maintained in the county where the child resides or is physically present or in a county where a parent resides.” The form the claim takes is a matter of choice rather than compulsion. G.S. 50-13.5(b) provides that an action under the section “may be maintained” as a civil action, joined with an action for annulment, divorce or alimony, as a cross action in such an action, by motion in the cause in such an action, or upon the court’s own motion in such an action. Where a divorce or alimony case is already before the court, that choice is usually made for practical reasons rather than jurisdictional ones.

Custody is heard in the district court, and under G.S. 50-13.5(h) these matters “shall be heard without a jury by the judge of such district court, and may be heard at any time.” For families in Charlotte that means the District Court in Mecklenburg County.

A non-parent has to clear a constitutional threshold before best interest applies

In North Carolina the best-interest test in G.S. 50-13.2(a) governs a dispute between two parents. It does not decide a dispute between a parent and a non-parent. A grandparent, aunt, stepparent or other third party seeking custody must first show that the parent has lost the constitutional protection given to parental decisions — by being unfit, or by conduct inconsistent with the parent’s protected status. The Supreme Court of North Carolina set out that protection in Petersen v. Rogers, 337 N.C. 397 (1994) and refined it in Price v. Howard, 346 N.C. 68 (1997), and Adams v. Tessener, 354 N.C. 57 (2001) requires the showing to be made by clear and convincing evidence.

Only after that threshold is crossed does the court reach best interest. Owenby v. Young, 357 N.C. 142 (2003) illustrates how demanding it is: after the custodial mother died, the grandmother failed to carry the burden of showing that the surviving father had forfeited his protected status. The parental preference applies even where one parent has died, and even where the surviving parent was the non-custodial parent.

A contested custody case is set for mediation before it is set for hearing

G.S. 50-13.01 records the policy behind this. The State encourages focused, good faith and child-centered parenting agreements, aims to reduce needless litigation over custody, and promotes the active and ongoing participation of both parents in the child’s life where that is in the child’s best interest. The mediation machinery is how that policy reaches an individual file.

Under G.S. 50-13.1(b), where it appears to the court that an action “involves a contested issue as to the custody or visitation of a minor child,” the matter “shall be set for mediation of the unresolved issues as to custody and visitation before or concurrent with the setting of the matter for hearing” — but only in a district “where there is a program established pursuant to G.S. 7A-494.” The duty is confined to those districts and to custody and visitation: issues arising on a motion to modify are treated the same way, while alimony, child support and other economic issues may not be referred to the program. Mecklenburg County operates such a program, so custody cases filed in Charlotte are routed to it.

G.S. 50-13.1(c) allows the court to waive mediation for good cause, and lists examples: a showing of undue hardship to a party, an agreement between the parties for voluntary mediation subject to court approval, allegations of abuse or neglect of the minor child, allegations of alcoholism, drug abuse or domestic violence between the parents in common, and allegations of severe psychological, psychiatric or emotional problems. A showing that a party resides more than fifty miles from the court may also be considered good cause.

Mediation under this section is private and confidential. G.S. 50-13.1(e) makes communications to the mediator absolutely privileged and inadmissible, and G.S. 50-13.1(f) provides that neither the mediator nor any participant is competent to testify to communications made during the sessions, save for communications in furtherance of a crime or fraud and the reporting duties under Article 3 of Chapter 7B. If the parties reach agreement, G.S. 50-13.1(g) requires it to be reduced to writing, signed and submitted to the court, which “shall incorporate the agreement in a court order” unless it finds good reason not to.

Jurisdiction comes from Chapter 50A, not from where the papers were filed

G.S. 50-13.5(c)(2) sends the question of jurisdiction straight out of Chapter 50: “The courts of this State shall have jurisdiction to enter orders providing for the custody of a minor child under the provisions of G.S. 50A-201, 50A-202, and 50A-204.” Those are the Uniform Child-Custody Jurisdiction and Enforcement Act provisions on initial jurisdiction, exclusive continuing jurisdiction and temporary emergency jurisdiction. G.S. 50A-201(b) makes them “the exclusive jurisdictional basis for making a child-custody determination by a court of this State.”

Because of that, the first pleading in a custody case carries a sworn disclosure. G.S. 50A-209(a) requires a party to state, under oath in the first pleading or an attached affidavit, the child’s present address, the places the child has lived during the last five years, the persons the child lived with during that period, and whether the party knows of other custody proceedings, proceedings that could affect the case including domestic violence, protective order, termination and adoption proceedings, or other people claiming custody or visitation rights.

Temporary orders, and the narrow route to an order entered without notice

G.S. 50-13.5(d)(2) allows a North Carolina court, “if the circumstances of the case render it appropriate, upon gaining jurisdiction of the minor child,” to enter orders for the temporary custody and support of the child “pending the service of process or notice as herein provided.” The closing words carry the point: this is authority exercisable while service or notice is still outstanding, not the power the court uses once both parents have appeared and been heard. It is also permissive — the court may enter such an order where the circumstances render it appropriate, and is never obliged to.

What (d)(2) does not do is override the restriction in the next subdivision, which governs the particular kind of temporary order that moves a child. G.S. 50-13.5(d)(3) provides that a temporary order “which changes the living arrangements of a child or changes custody shall not be entered ex parte and prior to service of process or notice, unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina courts.” Those two findings are the only doors. The same subdivision adds that an order requiring a law enforcement officer to take physical custody of a child “shall be accompanied by a warrant to take physical custody of a minor child as set forth in G.S. 50A-311.”

Third parties who commonly end up inside a custody case

A custody file in North Carolina rarely contains only two parents. The following are the routes by which other people and agencies become part of it.

• Grandparents, through G.S. 50-13.1(a) for custody, G.S. 50-13.2(b1) for visitation as part of a custody order, G.S. 50-13.2A for visitation with a grandchild adopted by a stepparent or relative, and G.S. 50-13.5(j) by motion in the cause after custody has been determined
• The Department of Social Services, through an abuse, neglect or dependency petition; G.S. 50-13.1(i) then stays the Chapter 50 custody action as provided in G.S. 7B-200, and under G.S. 7B-200(c) the stay attaches when the court obtains jurisdiction over the juvenile, unless the two matters are consolidated or the court in the juvenile proceeding enters an order dissolving it
• A guardian ad litem for the child, whose appointment is discretionary in a Chapter 50 custody case; under G.S. 7B-601(a) appointment is mandatory only where the petition alleges the juvenile is abused or neglected, and remains discretionary where dependency alone is alleged
• A party seeking a domestic violence protective order, which may award temporary custody and establish temporary visitation under G.S. 50B-3(a)(4); a temporary custody order entered under that Chapter is without prejudice and is for a fixed period not exceeding one year
• A monitoring provider, where the court exercises the power in G.S. 50-13.2(b2) to condition custody or visitation on abstaining from alcohol and on submission to a continuous alcohol monitoring system

Changing a custody order that has already been entered

In North Carolina, and “subject to G.S. 50A-201, 50A-202, and 50A-204,” a custody order “may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested,” under G.S. 50-13.7(a). G.S. 50-13.7(b) carries the same rule across state lines: on the same cross-reference to Chapter 50A, a North Carolina court that has gained jurisdiction may, on a showing of changed circumstances, enter a new custody order that modifies or supersedes one entered by a court of another state.

The Supreme Court of North Carolina applied a two-step approach in Shipman v. Shipman, 357 N.C. 471 (2003). The court must first find a substantial change of circumstances affecting the welfare of the child that occurred after the order was entered; only then does it decide whether modification is in the child’s best interest. Shipman also held that where the effect of the change on the child is self-evident and supported by substantial evidence, the findings need not reach a particular level of specificity.

How a custody order is enforced

A North Carolina custody order is a court order, and the ordinary enforcement route is contempt in the district court that entered it. Chapter 50A supplies additional machinery. An order from another state is registered under G.S. 50A-305 by sending the court a letter or other document requesting registration, two copies of the determination including one certified copy together with a sworn statement that it has not been modified, and the names and addresses of the parties; a person contesting validity must request a hearing within twenty days after service of notice, and confirmation “precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.”

Enforcement itself is expedited. Under G.S. 50A-308(c) the hearing on a petition for expedited enforcement “must be held on the next judicial day after service of the order unless that date is impossible,” in which case the court holds it on the first judicial day possible. Alongside that petition a party may apply under G.S. 50A-311 for a warrant to take physical custody of the child. The court is not obliged to grant one: it may issue the warrant if it finds, on the testimony of the petitioner or another witness, that the child “is imminently likely to suffer serious physical harm or be removed from this State.” A warrant that issues is enforceable throughout North Carolina.

Criminal law sits behind the civil order at the outer edge. Where a court has awarded custody of a child under the age of sixteen, taking or transporting that child out of North Carolina, or keeping the child outside the State, with intent to violate the order is an offense under G.S. 14-320.1, punishable as a Class I felony. Keeping the child outside the State in violation of the order for more than seventy-two hours is prima facie evidence that the person charged intended to violate it at the time of taking.

What the firm handles in custody and visitation matters

David P. Sheehan practices in Charlotte and appears in the district courts of Mecklenburg County and the surrounding counties. A custody matter is fact-driven, and the first task in any file is to work out which statute governs the claim, which court has jurisdiction under Chapter 50A, and what the record will have to show.

• Initial custody and visitation actions under G.S. 50-13.1, and custody claims joined with divorce, alimony or annulment actions
• Temporary parenting arrangements and temporary custody orders under G.S. 50-13.5(d)
• Applications for custody without prior notice under G.S. 50-13.5(d)(3), and defense of orders already entered
• Jurisdiction disputes under Chapter 50A, including home state, inconvenient forum and simultaneous proceedings in another state
• Registration and enforcement of out-of-state custody determinations under G.S. 50A-305 and 50A-308
• Motions to modify custody under G.S. 50-13.7, and contempt proceedings on existing orders
• Custody claims by and against grandparents and other third parties
• Custody issues arising within Chapter 50B domestic violence proceedings
• Court-ordered custody mediation and the negotiation of parenting agreements and consent orders

Common questions

Questions people ask

• Can I Get Child Custody of My Grandchildren?In North Carolina, Grandparents do have rights, and can file for Child Custody of a minor child. In order to do so, a…
• Does the Court Prefer Mothers or Fathers?In North Carolina, the Maternal Preference or tender years preference has been abolished. Under strong case law a…
• How do I Obtain Emergency Custody in North Carolina?Emergency Custody may be awarded in North Carolina by a temporary court ex parte order if the minor child is either…
• What is the UCCJEA, Uniform Child Custody Jurisdiction Enforcement Act?The Uniform Child Custody Jurisdiction and Enforcement Act was put in place and adopted across the United States and…
• What’s the Difference Between Joint Custody and Sole Custody?In dealing with Child Custody on a daily basis in Charlotte, North Carolina, individuals frequently ask what is the…

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.