Who can get custody of a child?
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.1 An order for custody of a minor child may grant:
- Joint custody to the parents;
- Exclusive custody to one person, agency, organization, or institution; or
- Custody to two or more persons, agencies, organizations, or institutions.2
In North Carolina, in order for a nonparent relative to be granted custody of a child, he or she must prove that both parents of the child are unfit to raise the child or that both parents have neglected the child.3
1 NCGS § 50-13.2(a)
2 NCGS § 50-13.2(b)
3 See Peterson v. Rogers, 337 N.C. 397 (1994)
Can a parent who committed violence get custody or visitation?
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.1 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 forcible rape, second degree forcible rape, statutory rape of a child by an adult, or first-degree statutory 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.2
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.3
1 NCGS § 50-13.2(a)
2 NCGS § 50-13.1(a)
3 NCGS § 50B-3
My child was conceived from rape. Can the offender/parent get custody or visitation?
No. If the person who raped you was convicted criminally of first degree forcible rape, second degree forcible rape, statutory rape of a child by an adult, or first-degree statutory 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.1
1 NCGS § 50-13.1(a)
Can I get an emergency order for temporary custody?
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.1 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.1 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.
1 NCGS § 50A-204
Can a parent who regularly drinks /abuses alcohol get custody or visitation?
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 system1 (a device worn at all times that tests for alcohol levels through the skin)2 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.1
1 NCGS § 50-13.2(b2)
2 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
Can I get temporary custody if I have a restraining order (DVPO) against the other parent?
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:
- whether the minor child was exposed to a substantial risk of physical or emotional injury or sexual abuse;
- whether the minor child was present during acts of domestic violence;
- whether a weapon was used or threatened to be used during any act of domestic violence;
- whether the abuser caused or attempted to cause serious bodily injury to you or your minor child;
- whether the abuser placed you or your minor child in reasonable fear of imminent serious bodily injury;
- whether the abuser caused you to engage involuntarily in sexual relations by force, threat, or duress;
- whether there is a pattern of abuse against you or your minor child;
- whether the abuser has abused or endangered the minor child during visitation;
- whether the abuser has used visitation as an opportunity to abuse or harass the aggrieved party;
- whether the abuser has improperly concealed or detained the minor child;
- whether the abuser has otherwise acted in a manner that is not in the best interest of the minor child.
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.1
1 NCGS § 50B-3