Custody

The judge can appoint a parenting coordinator at any time during a child custody case, including after a final order is issued or after one parent is held in contempt for violating a custody order, if:

1. all parties agree (consent);
2. one party files a motion to request a parenting coordinator and proves the factors in the “note” below; or
3. the judge decides on his/her own that one is needed based on the factors in the “note” below.¹

Note: In the situations described in numbers 2 or 3 above, the judge can only appoint a parenting coordinator if all of the following are true:

• appointing a parenting coordinator would be in the best interests of any minor child in the case;
• the parties are able to pay for the cost of the parenting coordinator; and
• the judge determines that it is a “high-conflict case,” which means that there is an ongoing pattern of any of the following:
  
  • excessive litigation;
  • anger and distrust;
  • verbal abuse;
  • physical aggression or threats of physical aggression;
  • difficulty communicating about and cooperating in the care of the minor children; or
  • other conditions that make the judge believe that a parenting coordinator is necessary.²

The order appointing a parenting coordinator must state the issues that the parenting coordinator is supposed to help the parties work on and decide. Any decision the parenting coordinator makes must be followed by the parents and can be enforced in court just as a judge’s order would be, unless a parent files a motion to ask the judge to overturn it and the judge agrees. The issues that a parenting coordinator can deal with include, but are not limited to:

• transition time, pickup, or delivery;
• sharing of vacations and holidays;
• method of pickup and delivery;
• transportation to and from visitation;
• participation in child or day care and babysitting;
• bedtime;
• diet;
• clothing;
• recreation;
• before- and after-school activities;
• extracurricular activities;
• discipline;
• health care management;
• changes in schedule that do not greatly interfere with the basic time-share agreement;
• participation in visitation, including significant others or relatives;
• telephone contact;
• changes to the child’s appearance, including tattoos or piercings;
• the child’s passport; and
• education.³

¹ NCGS § 50-91(a)
² NCGS §§ 50-91(b); 50-90(1)
³ NCGS §§ 50-91(c); 50-92(a), (b), (b1)

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)

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:

1. 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)?
2. 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

The general rule is that North Carolina state courts have power (jurisdiction) 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 six months.  See Can I get temporary emergency custody? for more information.

Example:  If a family has lived in North Carolina for the past year, North Carolina is the home state.  If the same family lived in North Carolina for one year and then one parent moved to South Carolina with the children and filed in South Carolina after living there for only four months, North Carolina 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