What are the steps for filing for custody?
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.1 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.2 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.3 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.4 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.
1 NCGS § 1-82
2 NCGS § 50-13(b)
3 NCGS § 50-13.1(c)
4 NCGS § 50-13.1(b)
When can I be excused from mediation? What if I am a victim of domestic violence?
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:
- you are a victim of domestic violence by the other parent;
- the defendant has abused or neglected the child(ren);
- allegations of alcoholism or drug abuse of the other parent;
- allegations of severe psychological, psychiatric, or emotional problems of the other parent;
- if you live more than 50 miles from the courthouse of the county where you are filing your case;
- you and the defendant have agreed to private mediation (which you would have to pay for on your own); or
- any other reason why you believe the mediation would cause you undue hardship.1
1 NCGS §50-13.1(c)
Can things that I say during mediation be used against me in court if we go to trial?
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.1
1 NCGS § 50-13.1(e) & (f)
How will a judge make a decision about custody?
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"1 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:
- If the judge finds that domestic violence has occurred, the judge will consider 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.1 The factors the judge must consider are the same as they would be if you were filing for temporary custody as part of a DVPO. Those factors are spelled out here: Can I get temporary custody if I have a restraining order against the other parent (DVPO)?
- If either parent is in the military, the judge cannot consider a parent's past deployment or possible future deployment as the only basis in determining the best interest of the child but the judge can consider any significant impact on the best interest of the child regarding the parent's past or possible future deployment.2 In other words, just the fact that the parent may have to relocate or enroll the child in a new school is not automatically supposed to be considered a negative factor against the parent. However, if the other parent can prove that for this specific child, enrolling in a new school or being away from half-siblings, for example, would significantly harm your specific child, this may be considered.3
When you go to court, you want to be prepared with as much information as possible about yourself, the other parent, and your child. In order to show the judge that you deserve custody of your child, it is important that you have a good knowledge of your child's interests, abilities, care, etc. For legal advice, please consult with an attorney who is knowledgable about custody law. See our NC Finding a Lawyer page for referrals.
1 NCGS § 50-13.2(a)
2 NCGS § 50-13.2(f)
3 See uniform law comment to subsection f in NCGS § 50-13.2
Do I need a lawyer to start a custody case?
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.
In which state can I file for child custody?
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.1 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.
1 NCGS § 50A-201