Experienced Legal Guidance: Child Custody And Visitation In North Carolina

Pick up any newspaper or journal, and you are bound to see study after study confirms that the rate of divorce and separation continues to rise. This rise in the breakup of relationships also translates to a rise in the number of children who come from broken homes. Today, almost half of all children grow up in a home without both parents.

At Bull & Reinhardt, PLLC, we have over 60 years of combined experience helping families in Ashville and its surrounding western North Carolina communities with complicated family law challenges. We can provide seasoned guidance and trusted support to assist with your custody hearing and visitation issues.

Deciding Child Custody And Establishing Parenting Plans

In modern times, there has also been a transformation, creating alternative family structures that may create new and additional issues involving the placement of children. While there are many reasons for the decline in the number of intact homes, as parents contemplate separation, they need to learn the custody and visitation options available to them. It is also helpful to understand the standards applied by the courts in deciding these issues so they can make the best decisions for their children.

Establishing The Best Interests Of The Child

In North Carolina, if a matter is brought before the court regarding custody or visitation of children, the court determines the same using the “best interest” test. In other words, the court will consider where, when, and with whom, and under what conditions or restrictions the children are better off. The court makes this determination based on the evidence submitted at trial.

It is important to have experienced and skilled family law attorneys who are familiar with the rules of evidence and courtroom procedures to present your evidence. Generally, the court will receive evidence that may include:

• Testimonials of both parties
• Their expressed desires in regard to the placement of the children
• The availability of each parent and work schedules
• Reviewing the parents’ mental and physical ability to provide a safe and nurturing environment
• The existence or absence of any domestic violence in the home, or other safety concerns
• Examining the children’s age and wishes depending on the age of the child
• Expert opinion from a child or family psychologist

Most likely, any divorce proceeding, paternity action or child custody issue that requires the court’s consideration will be directed to alternative dispute resolution methods, like mediation, before proceeding to a trial. Our experienced child custody litigators are also skilled negotiators and can also represent your interests in mediation.

Understanding The Different Child Custody Options

After receiving all the evidence, the court has several options and variations of these options to choose from in structuring the custody decree they feel is in your child(ren) best interest:

• Primary or sole custody: In this situation, the children are physically placed primarily in the care, custody, and control of one of the parents. As such, the “custodial” parent not only has the children a majority of the time but also has the final decision-making authority for the children. This includes making decisions regarding school placement, extracurricular activities, medical decisions, etc. The other parent has the right to visitation if the court finds the same to be in the children’s best interest. There is also a presumption that if the primary custodial relocates, the move is in the best interest of the child.
• Joint custody: Often confused with shared custody, joint custody does not refer to the physical sharing of the children but to the sharing of the decision-making among the parents, as if they were still together in an intact relationship. Joint custody is often coupled with shared custody to work out a more equal division of time each parent has with the children.
• Shared custody: In this setting, the physical placement of the children is more equally split between the parents, in an effort to maximize both parents’ time with the children. While this is the ideal setting for all parties, it requires the parents to live in relative proximity to each other and to be able to communicate without hostility concerning the needs of the children. Studies have shown that when both parents are involved with their children on a day-to-day level, not only do the children have less of a negative effect as a result of the divorce, but there is also a sharp decrease in the number of disputes between the parents over issues such as support and schedule modification.

The best resolution of custody disputes occurs when the parents are able to act rationally with one another in assessing their children’s needs. If parents can put their emotions and differences aside and agree on a parenting plan, this will help the family move forward and also be in the best interests of the children. Parents should remember that even after their child’s custody and visitation issues are resolved, they still have to be co-parents together.

Answering Your Frequently Asked Questions About Child Custody And Visitation

With more than 60 years of combined experience, our child custody lawyers have answered a lot of questions through the years. Here, they answer some of the questions they are most commonly asked. For answers to your specific questions, we invite you to schedule an appointment.

When is my child old enough to decide which parent he or she wants to live with?

When considering the best interests of the child, the courts will consider the child’s wishes, provided the child is old enough and mature enough to express them. There is no set age at which children are allowed to testify concerning their wishes.

The court looks to each child’s maturity and ability to communicate when it decides whether to talk to the child. However, the child’s desires alone are not enough; rather, they are another piece of information for the courts to consider. Probably more important than what the child wants, is to consider why the child prefers placement with one parent over the other.

Do I have to allow my spouse to see the children?

Absent some showing of abuse or threat to the child, it is unlikely that the courts would cut off a parent’s right to see his or her children totally. This does not mean that there aren’t restrictions. For example, if a parent is struggling with addiction or mental illness. The court can limit the amount of visitation, make it supervised by an appropriate adult or suspend it during periods of treatment if it becomes appropriate.

It is important to note that if one parent refuses visitation to the other without good cause, the court may consider a custody modification in favor of the denied parent. Do not attempt to control a child custody disagreement without seeking legal advice from an experienced child custody attorney.

Can I move out of state with my child?

Child custody, like visitation and support, can always be reconsidered and modified by the court. As situations change, the court retains jurisdiction to review custody and make changes. Once the court has made a determination of custody, it can change the placement of the children if there is a showing of a substantial change of circumstances affecting the children.

Relocations out of state or far away in the state are one factor the courts may consider in determining if the move would constitute a substantial change. Obviously, a move far away can have an impact on the noncustodial parent’s ability to exercise visitation and, therefore, will be considered by the court. There is no hard and fast rule concerning relocations, and each case must be viewed individually based on the circumstances involved in that case.

Do we have to go to court if we have agreed on what to do with our children?

The simple answer is no. Oftentimes, we’re able to negotiate and resolve disputes of custody or visitation and create a workable parenting agreement without the need to initiate legal action. In several ways, this is preferable because:

• It allows the parties to mold the outcome themselves instead of having the courts decide for them.
• When each party is involved in shaping the agreement, there are usually fewer problems with enforcement.
• Generally, it is less costly to agree on workable situations together than to proceed to litigation.

It is our belief that attempts at resolving family law challenges, especially child custody issues, should be attempted before rushing to court. Litigation and trial should be the last alternative and should only be pursued when other efforts have failed or when it is clear that the opposing party is not making decisions rationally in his or her own or the children’s best interest.

How can I protect myself and my children if there is physical abuse or drug usage in the home?

Unfortunately, today, we see far too many cases where there is domestic violence or abuse in a home. This is dangerous for both the adults and the children. If you are experiencing domestic abuse, seek help immediately by contacting an attorney, social services, your local clergy or going to a shelter.

North Carolina domestic violence laws make it possible to get a restraining or protective order. Once the order is issued and served on the aggressor, the court can order the abuser to leave the home and set parameters for visitation. If any part of the order is violated, the abuser could be arrested for violating the order.

How much visitation can I have with my children if we separate?

Courts decide the issue of visitation based on what they perceive is in the best interest of the children. Generally, unless there is evidence that a party is unfit or unable to provide for the proper care and nurturing of his or her children, he or she will be granted unsupervised visitation. However, the amount of visitation granted will depend on the facts and circumstances of your case and can even vary between different judges and different jurisdictions.

In deciding the periods of visitation, the courts will look at the schedules of the parties and the children. The court will try to allow for periods of visitation when the parents can spend significant quality time with their children. In recent years, the trend has been to grant additional times besides alternating weekends to allow the noncustodial parent the ability to maintain involvement with his or her children. Ultimately, each case will be determined based on the unique facts and circumstances of that case.

Consult An Asheville Child Custody Lawyer

Our innovative child custody attorneys are available for initial consultation appointments. To schedule an appointment, you can contact our office online or call 828-254-0499.