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 court is not to give a presumption that custody should be awarded to a mother, regardless of whether the child is marital or nonmarital. However, a judge is allowed to give some weight to a mother that is still breastfeeding a newborn.

The rule appears in a single sentence of G.S. 50-13.2(a)

In North Carolina the governing sentence is short: “Between the parents, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child.” It appears in G.S. 50-13.2(a), immediately after the best-interest test. Because it speaks of natural and adoptive parents alike, it applies whether the child was born inside or outside a marriage and whether the parental relationship arose by birth or adoption.

The sentence was not always there. North Carolina once recognized a preference for the mother in the custody of a child of tender years. The custody statute no longer contains one, and what it contains instead is an express direction that no presumption applies between the parents. A parent who arrives at a Mecklenburg County courtroom expecting the statute to lean is reading a rule the General Statutes no longer carry.

Two features of the sentence repay attention. It abolishes a presumption, which is a rule about where a case starts and who has to shift it, rather than a rule about what evidence a judge may hear. And it is confined to the parents. Between a parent and someone who is not a parent, a very different rule applies, and it is set out further down this page.

What replaces a presumption is the record

A presumption is a shortcut: it tells the judge where to start and puts the burden on the other parent to shift the result. Removing it means the court has no starting point other than the evidence. G.S. 50-13.2(a) requires the court to “consider all relevant factors,” and it identifies three the court cannot pass over — 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.

Everything beyond those three is left to the trial court to identify as relevant on the facts in front of it. That is why two custody cases with superficially similar households can produce different orders. It is also why the same subsection requires an order for custody to “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.” The findings are the mechanism by which an appellate court can tell that the decision rested on evidence rather than on assumption.

A fact about a particular child is not a presumption. Evidence about an infant’s feeding, a child’s medical needs, a school schedule or a work pattern is evidence like any other, weighed for what it shows about that child’s interest and welfare. What G.S. 50-13.2(a) forbids is a category-level advantage attaching to a parent because of which parent she or he is.

Domestic violence is the one area where the statute directs the court

G.S. 50-13.2(b) does more than require consideration. If the court finds that domestic violence has occurred, it “shall enter such orders that best protect the children and party who were the victims of domestic violence, in accordance with the provisions of G.S. 50B-3(a1)(1), (2), and (3).” That is a duty rather than a discretion, and it is conditional on the finding: it arises where the court finds that domestic violence has occurred, not on the allegation. The same subsection removes a trap that used to catch a parent who left: “If a party is absent or relocates with or without the children because of an act of domestic violence, the absence or relocation shall not be a factor that weighs against the party in determining custody or visitation.”

Chapter 50B runs alongside Chapter 50. A domestic violence protective order may award temporary custody and establish temporary visitation under G.S. 50B-3(a)(4) — pursuant to G.S. 50B-2 where the order is granted ex parte, and pursuant to G.S. 50B-3(a1) where it is granted after notice or service of process. Under subsection (a1) the court decides custody on the best interest of the minor child with particular consideration given to the safety of the child, and may impose conditions such as supervised visitation, supervised exchanges, completion of an abuser treatment program, or abstaining from alcohol or controlled substances around a period of contact. Temporary custody entered under Chapter 50B is without prejudice and is for a fixed period of time not to exceed one year, so it settles nothing permanently.

Military service cannot be the deciding factor by itself

G.S. 50-13.2(f) addresses one recurring form of category-level disadvantage. In a proceeding for custody of the child of a service member, a North Carolina court “may not consider a parent’s past deployment or possible future deployment as the only basis in determining the best interest of the child.” The prohibition is precise. The court may consider any significant impact that a past or possible future deployment has on the child’s best interest; what it may not do is make the fact of service the sole reason for the outcome.

The same instinct runs through G.S. 50-13.2(e), which allows visitation by electronic communication and provides that it “may not be used as a replacement or substitution for custody or visitation.” Electronic contact supplements a schedule; it does not stand in for one. The amount of time it is used is not a factor in calculating child support, and it may not be used to justify or support relocation by the custodial parent out of the immediate area or the State.

The presumption that does exist runs between a parent and a non-parent

North Carolina has no presumption between two parents, but it has a strong one between a parent and anyone else. A grandparent, stepparent or other third party seeking custody must first show that the parent is unfit or has acted inconsistently with the parent’s constitutionally protected status — the protection recognized in Petersen v. Rogers, 337 N.C. 397 (1994) and Price v. Howard, 346 N.C. 68 (1997). Adams v. Tessener, 354 N.C. 57 (2001) requires that showing to be made by clear and convincing evidence, and only if it is made does the court reach the best-interest question at all.

The contrast is worth stating plainly. Between a mother and a father, the court weighs evidence from a standing start. Between a parent and a non-parent, the non-parent carries a threshold burden, at a heightened standard of proof, before evidence about the child’s best interest becomes decisive.

Joint custody has to be considered when either parent asks for it

The last sentence of G.S. 50-13.2(a) provides that “joint custody to the parents shall be considered upon the request of either parent.” The request triggers consideration, not an outcome. G.S. 50-13.2(b) then sets out what the court may order: an 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,” with such terms, including visitation, as will best promote the child’s interest and welfare.

There is one further protection against a parent being written out of a child’s life without a stated reason. Under G.S. 50-13.5(i), before denying a parent the right of reasonable visitation, the trial judge “shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.” The finding is mandatory, it has to be written, and it has to appear in the order.

Neither parent’s position is fixed by the first order

A custody order in North Carolina is not permanent in the sense a property judgment is. G.S. 50-13.7(a) provides that, “subject to G.S. 50A-201, 50A-202, and 50A-204,” an order of a court of this State for custody of a minor child 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. Shipman v. Shipman, 357 N.C. 471 (2003) describes the two steps: a substantial change of circumstances affecting the welfare of the child since the order was entered, and then a decision on whether modification serves the child’s best interest.

The absence of a gender presumption applies at that stage too. A motion to modify is decided on what has changed and what the change has done to the child, and the same rule in G.S. 50-13.2(a) prevents either parent from starting the hearing ahead of the other.

Common questions

Does North Carolina law favor the mother in a custody case?

No. G.S. 50-13.2(a) provides that between the parents, whether natural or adoptive, “no presumption shall apply as to who will better promote the interest and welfare of the child.” The custody statute contains no maternal or tender-years preference. A custody decision rests on the evidence and on written findings of fact reflecting the court’s consideration of the factors the subsection names, not on which parent is the mother.

Does it matter whether the parents were married?

Not for the presumption question. G.S. 50-13.2(a) applies the no-presumption rule between the parents “whether natural or adoptive,” and the best-interest test in the same subsection applies to any custody order entered under the section. Where paternity is disputed, that is a separate question that has to be resolved before a father’s custody claim can proceed, but it does not change the standard once he is a parent.

Can a parent be denied visitation altogether?

Only with a written finding. G.S. 50-13.5(i) provides that before denying a parent the right of reasonable visitation, the trial judge shall make a written finding of fact that the parent being denied visitation is an unfit person to visit the child, or that visitation rights are not in the best interest of the child. Without that finding on the face of the order, the denial is exposed on appeal.

How does domestic violence affect a custody decision in North Carolina?

G.S. 50-13.2(a) requires the court to consider acts of domestic violence between the parties, the safety of the child, and the safety of either party. Where the court finds that domestic violence has occurred, G.S. 50-13.2(b) requires orders that best protect the children and the victim in accordance with G.S. 50B-3(a1)(1), (2) and (3), and an absence or relocation caused by an act of domestic violence cannot be weighed against the party who left.

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