Know the Laws: North Carolina
UPDATED September 24, 2014
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Custody is the physical care and supervision of a child (under 18 years of age). Physical custody is used to describe the person with whom the child lives on a day-to-day basis. Legal custody is used to describe the person who has the right to make major decisions concerning the child, including decisions about the child's education, health care, and religious training.*
There are two different types of custody arrangements: joint/shared custody and sole/exclusive custody.** Then there is visitation, which refers to the time that the child spends with the parent who the child does not live with.
* NCGS § 50A-102(3)
** NCGS § 50-13.2(b)
There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for (and get) more custody or visitation rights than they are comfortable with.
If the other parent is presently uninvolved with the child, he or she may become involved just because a case was started. Also, if the other parent fights for custody, the case may drag on for a long period of time, sometimes over a year. You may need to go to court several times, especially if the other parent also wants custody. The court will look into many aspects of your personal life that you may prefer keeping private such as past mental problems, your criminal record, substance abuse issues, and details of your personal relationships.
Before starting a custody case, ask yourself the following questions:
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time -- and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to NC Finding a Lawyer to seek out legal advice.
Sole custody or exclusive custody means that one parent makes all of the major decisions in the child’s life. The parent with sole custody is referred to as the "custodial parent" and the other parent is referred to as the “non-custodial parent.” Generally, the court will order that the non-custodial parent will have continuing contact with the child through visitation. It is even possible for the court to order that the non-custodial parent can see the child as often as a parent who has joint custody would see his/her child.
Joint custody or shared custody means that both parents jointly (together) make the major decisions in the child's life. To make these joint decisions, the parents have to be able to communicate and negotiate with each other to come up with a decision that they both agree on. For this reason, joint custody often is not a good option in relationships where there is domestic violence. Minor day-to-day decisions such as bedtime or what the child will wear are up to the parent who is with the child at the time.
Joint custody does not mean that a child must live half of the time with one parent and the other half of the time with the other parent. It means that physical custody will be shared in such a way to ensure that the child has continuing contact with each parent. Usually, the court will specify with which parent the child will be primarily residing (living).*
* NCGS § 50-13.2(b)
Visitation is a term that will likely be included in any custody order. Visitation gives the non-custodial parent the right to see the children. The court usually likes to set a specific visitation schedule for the child to spend time with the non-custodial parent. The amount and type of visitation granted can depend on the ages of the children, how far apart the parents live from each other, and other specific factors relating your child. A visitation schedule can include weekly sleepovers, weekends, weekday evenings, shared holidays, school vacations, summers, etc.
A judge may order supervised visitation if the safety of the child is an issue. If there has been domestic violence between the parents, a judge may also order that the exchange of the child take place in a supervised setting or in a public place.*
* NCGS § 50-13.2(b)
Generally, the parents of the child are first in line to be granted custody. If, however, the parents are unfit, custody can be awarded to the person, agency, organization or institution that will best promote the interest and welfare of the child.* An order for custody of a minor child may grant:
Possibly, yes. If the judge finds that domestic violence has occurred, the judge must take into consideration the acts of domestic violence, the safety of the child, and your safety when making a custody or visitation decision.* However, there are also other factors that the judge will consider when deciding custody and visitation. Therefore, the fact that the other parent committed domestic violence does not necessarily mean that s/he will be denied custody or visitation unless the parent was convicted criminally of first degree rape, rape of a child, or second degree rape against you, which resulted in the child being conceived. In this situation, the law specifically says that the offender/parent cannot claim the right to custody or visitation of the child.**
Visitation by the parent who committed violence may be allowed, but only if the judge believes that proper measures can be taken to insure the safety of both you and your child. This may include an exchange in a protected setting or supervised visits. If the judge does not believe that you are in danger from the abuser, the judge may order unsupervised visitation without any measures to protect you or your child. Therefore, if you feel there is still a risk of violence or danger, you or your lawyer must convince the judge that you and your child need protection.***
* NCGS § 50-13.2(a)
** NCGS § 50-13.1(a)
*** NCGS § 50B-3
No. If the person who raped you was convicted criminally of first degree rape, rape of a child, or second degree rape against you, which resulted in the child being conceived, the law specifically says that the offender/parent cannot claim the right to custody or visitation of the child.*
* NCGS § 50-13.1(a)
Yes, but in any custody or visitation order, the judge can require either or both parents (or any other person seeking custody or visitation) to not drink any alcohol. The judge can even require the parent to wear a continuous alcohol monitoring system* (a device worn at all times that tests for alcohol levels through the skin)** to make sure that this part of the custody/visitation order is being followed. The provider of the monitoring system would then be ordered by the judge to report any violation of the order to the court and to each party; and the parent can be held in contempt of court if s/he is found to have consumed alcohol.*
* NCGS § 50-13.2(b2)
** An example of a continuous alcohol monitoring system can be found here, although this is not necessarily the one that may be ordered by the judge in your case
Maybe. An emergency custody order is a temporary order that only lasts until you go to court and have a full custody hearing. You may request emergency custody if you believe there is danger of serious or immediate injury to you or your minor child.
If North Carolina is the "home state" (see below In which state can I file for child custody? for definition of home state):
The judge, or the magistrate who acts as a judge, may give you a temporary custody order if s/he finds the child is exposed to a substantial risk of bodily injury or sexual abuse or if there is a substantial risk that the child may be abducted or removed from the state of North Carolina.* Filing for emergency custody is a complicated process, and it is recommended that you consult with an attorney to see if you may qualify for it.
If North Carolina is not the "home state" but you and your child are in North Carolina:
You can file for emergency custody if the child has been abandoned or if a custody order is necessary to protect the child because the child, a sibling of the child, or parent of the child (i.e., you) has been threatened with or subjected to abuse.* You may also request temporary custody through a domestic violence protective order. For more information on the process, please see our NC Domestic Violence Protective Orders ("50B orders") page.
* NCGS § 50A-204
If a restraining order (called a Domestic Violence Protection Order or DVPO) has been granted due to domestic violence, the order may include temporary custody of minor children and temporary visitation rights. Be sure to tell the judge if you would like temporary custody included in the DVPO. Custody granted with a restraining order can only last for up to one year until the order expires. Even if the protective order is renewed, the custody provision will not renew.
If you request temporary custody as part of your DVPO, the judge must consider the following factors when determining custody or visitation rights:
Also, if the judge grants visitation as part of a DVPO, the judge must also provide for safety and well-being of you and your minor child. The judge may also consider supervised visitation, exchanging the child in a safe place, and other factors that would contribute to the child's safety.*
* NCGS § 50B-3
The steps of a custody case will depend on the particulars of your case. To find out what the process will be like for you, please talk to a lawyer in your area. Some general information is below.
Step 1: File the custody complaint (petition) in court.
In order to start a custody case, you need to file a custody complaint with the court in the county where the parent or the child resides or in the county where the child is physically present.* There are other forms that need to be filed with the complaint so please verify with the clerk of courts that you have all the forms you need. Also, there is a filing fee to start the custody case. If you cannot afford the fee, you can fill out a form titled "Petition to Sue as an Indigent" and request that the court waive the filing fee for you. These forms should be available at the courthouse.
Step 2: Get the custody papers served on the abuser.
After you have filed the paperwork and paid the fee to start a custody case (or received a fee waiver), you will have to make sure that the defendant is served with copies of the documents you have filed. Serving the defendant means giving the defendant copies of the documents you have filed. To do this, the defendant can be served personally by the sheriff or other law enforcement officer, a private process server, or anyone who is not a party and is at least 21 years of age. You cannot serve the papers yourself. If a defendant is represented by an attorney, the defendant may also consent to service on his/her attorney in what is known as an “acceptance of service.” In this case, the papers may be served either on the defendant or on his/her attorney, on the defendant’s behalf. If the defendant lives out of state or if you cannot find the defendant, you should consult with an attorney to discuss other ways in which you can have the defendant served with the custody papers.
Step 3: Parenting classes and mediation
Once you start a custody case, many counties in North Carolina require that you and the defendant attend a parenting education class before going forward with your case. You and the other parent will take the parenting classes separately. Each county handles the parenting classes differently. To find out about parenting education in your county, consult with the court clerk at the courthouse.
Additionally, counties in North Carolina that offer mediation require that before seeing a judge you try to resolve your case by mediation.** Mediation is an opportunity to resolve a case without going to court. In counties where mediation is required, somebody from the court will sit down with you and the defendant to try to work out an agreement relating to custody and visitation. If your mediation is successful, your custody and mediation agreement will be written out and approved by a judge, thus becoming a court order. However, if you are a domestic violence victim, mediation may not be required. The court can waive mediation if you can show that domestic violence has occurred between you and the other parent.*** If you have an attorney, you can choose to have your attorney help you with the mediation process. For more information, please see When can I be excused from mediation? What if I am a victim of domestic violence?
Step 4: Appear in front of the judge.
If the mediation is not successful or if mediation is not required due to domestic violence, your custody case will then go to trial before a judge. At trial, both you and the other parent have the right to present evidence (such as your own testimony, witnesses’ testimony, relevant documents such as police reports or medical records that could prove domestic violence, etc.). The judge will consider the evidence submitted by you and the other parent and make a decision about who should have custody, what type of custody that person should have, and what type of visitation the non-custodial parent should have.**** Having a lawyer represent you at trial is generally best. Go to our NC Finding a Lawyer page for links to free and paid lawyers.
* NCGS § 1-82
** NCGS § 50-13(b)
*** NCGS § 50-13.1(c)
**** NCGS § 50-13.1(b)
In counties in which mediation is offered, mediation is required unless a judge or other officer of the court decides that you do not have to attend. To request a waiver of mediation, you can fill out a form called "Motion and Order for Waiver of Mediation." There are several reasons for which the judge could grant the waiver. Here are some examples, but other reasons may be considered as well:
No. Everything that is said by the parties in the mediation proceeding is confidential. This means that neither of the parties involved in the mediation nor the mediator will be allowed to testify to the judge about what was said in the proceeding. The exception to this rule, however, is if an admission of a crime, fraud or abuse of a child is made.
Note: The mediator may also interview the child or other people to help evaluate the needs of the child. The same confidentiality rules apply to those interviews.*
* NCGS § 50-13.1(e) & (f)
Custody is based on what the judge believes is in the best interest of the child. The law says the judge must consider "all relevant factors"* to determine a child's best interest but does not offer a specific list of what those factors are. The law does specifically say the following, however:
* NCGS § 50-13.2(a)
** NCGS § 50-13.2(f)
*** See uniform law comment to subsection f in NCGS § 50-13.2
You do not need a lawyer to file for custody. However, custody cases are often complicated, and a lawyer can help you through it. It also may be difficult for you to file the proper paperwork without the help of a lawyer. Also, if the other parent has a lawyer, it will be particularly helpful if you have a lawyer as well.
You can talk to or get a lawyer at any time during the course of your custody case, but getting a lawyer at the last minute usually will not be grounds for postponing your case. Also, many lawyers will not take a custody case at the last minute so it is best to begin your search for a lawyer as soon as you know that there will be a court case.
If you decide to represent yourself (known as being “pro se”) in a custody case, some counties have a pro se self-serve center where you can get the forms that you will need to file. Wake County has such a center, so does Mecklenburg and a few others. To find out if your courthouse has a pro se self-serve center, you can call your local courthouse. Go to NC Courthouse Locations to find the court in your county.
The general rule is that North Carolina state courts have authority (power) to hear a custody case if North Carolina is considered your child's "home state." A child's "home state" is the state where the child has most recently lived with a parent or a person acting as a parent for at least six consecutive months. In the case of a child less than six months old, the "home state" is the state where the child has lived from birth. (Temporary absence from the state does not change anything.)
If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, either you or the other parent can start a custody action in the state in which your child most recently lived for at least six months. There is an exception to this rule – if you or the child or a sibling of the child is in danger, you may be able to file for temporary emergency custody in North Carolina even if you have been in North Carolina for less than 6 months. See Can I get temporary emergency custody? for more information.
Example: If a family has lived in NC for the past year, NC is the home state. If the same family lived in NC for one year and then one parent moved to SC with the children and filed in SC after living there for only four months, NC is still the home state.
There are exceptions to the home state rule. In some cases, you can file for custody in a state where the children and at least one parent have "significant connections" to the state. Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state decide the case.* This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this.
For a list of legal resources, please see our NC Finding a Lawyer page.
* NCGS § 50A-201
Since custody is decided in the best interest of the child, an order is not usually permanent. If you have a custody order already in place, you can petition the court to make changes to it (modify it). Generally, you can only ask to have a custody order modified if there has been a "substantial change in circumstances."* Some examples of "substantial change in circumstances" could be if one of the parents is arrested, if the child is being abused, etc. In North Carolina, a finding by a judge that domestic or family violence has occurred since the last custody determination could be considered a change in circumstances.
To modify a custody order, you will need to go to the court that issued the order, even if you have moved. Generally, once a court has jurisdiction (power over a case), that court will keep jurisdiction, even if you move to another state. If you have moved, you can ask the court to change the jurisdiction to the new state that you are in. This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. Go to the NC Finding a Lawyer page to find legal assistance.
* NCGS § 50-13.7(a)
It depends. If you, your child(ren), the other parent, and anyone acting as parent have all moved to another state, you may be able to change the state where the custody case is being heard. If the judge finds that the child, the parents and anyone acting as the parent does not have significant contact with the original state, or if they are not presently living in the state, s/he will consider changing the state where the case is heard. For more information about modifying an order in a new state, see Changing a final order.
Also, if you are a victim of domestic violence, North Carolina allows the judge to consider this factor in deciding if a particular state is no longer appropriate for the case.* You will have to ask the judge who is hearing the case to consider allowing the case to be heard in another state. This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. To find a lawyer, free or paid, go to our NC Finding a Lawyer page.
* NCGS § 50A-207(b)(1)
The custody order may allow you to take your kids out of the state, prohibit you from taking the kids out of the state, or not address this issue. The judge may require that you post a bond (money) or other security conditioned upon the return of the child to the state. If either you or the other parent take a child out of the state with the intent of violating the custody order, either of you may be charged with a felony.*
If your order says you cannot take the child out of state or doesn’t address it, you may have to return to court to get permission to leave the state with the child (depending on how long you plan to be outside of the state). We strongly suggest that you talk to a lawyer who can review your custody order and advise you on what steps you need to take. Go to NC Finding a Lawyer for free and paid legal referrals.
* NCGS § 14-320.1
In North Carolina, unless there is a court order stating otherwise, both parents have a right to access the child's education and health records. Even if one parent has sole custody, unless the court order specifically prohibits the non-custodial parent from accessing the records, the non-custodial parent has a right to access those records.* Therefore, if you believe that you or your child might be in danger if the abuser can see your child’s records (if, for example, your confidential address is listed in those records), you may want to ask the judge for an order stating that the abuser cannot have access to the records. For advice on when this type of order is usually granted, you may want to talk to a lawyer. You can find free and paid legal referrals on our NC Finding a Lawyer page.
* NCGS § 50-13.2(b)