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How do I get custody of my children?

How is custody determined in North Carolina?

In North Carolina, you initiate a claim for child custody by filing a complaint in District Court.  Some counties, like Wake County, have specially designated Family Courts as part of their District Court system.  The Complaint would cite whether you are filing a claim for temporary and/or permanent custody.  Temporary custody claims are usually allotted a shorter amount of time for the hearing.  In counties with Family Court, temporary hearings are often limited to two hours for a temporary hearing, an hour for each party.  Permanent custody claims can take several days or even a week of trial time.  

Court-Ordered Custody Mediation

After filing your custody claim with the appropriate court, you will be given notice to attend court-ordered custody mediation.  (If one party lives more than fifty miles from the courthouse, the court can waive this mediation require upon request of the party living more than fifty miles away.  A court can also waive this mediation if there is proof of domestic violence in the parties’ relationship.)  This mediation takes place at the courthouse where your custody claim is pending.  The parties and a State-funded mediator attend this mediation.  The parties both sit in the same room with the mediator.  Attorneys do not attend this mediation.  At this mediation, you will discuss only the issue of custody, not child support or property issues.  If you successfully mediate custody at this mediation session, your custody claim will not have to go court.  If you reach an agreement, you will likely sign a Parenting Agreement.  If you are represented by an attorney, you will want your attorney to review this Parenting Agreement prior to signing; you will provide the unsigned agreement to your lawyer who can make comments and give you advice. You can go back to the Mediation Office and sign the agreement or ask for changes.  If you are unable to reach an agreement in court-ordered mediation, your case will be set for trial.

Private Mediation

Even if you could not reach an agreement in court-ordered mediation, you can still attend private mediation and try to reach an agreement.  Attorneys attend private mediation, and the mediation is usually conducted by a family law attorney in the office of the mediator or one of the attorneys.  At this private mediation, you can discuss and resolve issues including money and property.  The parties almost always sit in separate rooms with their respective attorney, and the mediator goes back and forth between the rooms to try to reach an agreement.  The mediator does not represent either party but instead works as a facilitator.  If you reach an agreement, it will be reduced to writing and most likely signed and notarized the day of the mediation.

What happens in a custody hearing?

Temporary Custody Hearing

You will receive notice from the court of the date that your temporary hearing is set for trial.  There will likely be several other cases on the court docket.  Just because your case is set on the trial docket does not mean it will necessarily be heard on the date it is set.  Cases are frequently postponed one or more times before they are actually heard by the court, due to the crowded court dockets in many counties.  You should always be prepared to try your case on the day it set, as other things with precedence on the calendar could settle and your case could be reached.

Will I have to testify at the temporary custody hearing?

Yes, you will most likely have to take the witness stand during your temporary custody hearing.  As stated earlier, temporary custody hearings are typically limited as to time.  At the hearing, the party who filed the temporary claim will put on evidence first.  Evidence at a temporary hearing is abbreviated; it may only include testimony of the parties and few exhibits.  After the moving party puts on evidence, the opposing party or his/her lawyer will have the opportunity to cross examine the moving/filing party.  After the moving party concludes his/her evidence, the non-moving party has a chance to provide evidence and face cross examination.  The court will likely render a temporary custody ruling after hearing evidence on the day of the temporary hearing.

Is a permanent custody hearing different from a temporary custody hearing?

Yes, a permanent custody hearing is usually different from a temporary custody hearing.  First, the evidence is more expansive at a permanent custody hearing.  You will likely have spent hours with your lawyer to prepare for this hearing.  You will likely have collected evidence and prepared your testimony with your lawyer, much greater preparation that for the temporary hering.  Evidence at this permanent hearing typically includes photos, of your children, your home, extended family with your children, etc.  As in the temporary custody hearing, the other party can then present the same sort of evidence.  There will likely be witnesses for both parties, such as family members, friends, and others involved with your children.  A permanent trial can, though does not have to, last several days.  The court will likely take notes and make ask questions.  The court may make a ruling immediately after conclusion of the evidence, or the court may “take the matter under advisement,” meaning the court will render a decision at a later date.

What is legal custody vs. physical custody?

In any custody case, the court will make a decision about “legal custody” of the child/children.  A parent has legal custody when he or she is allowed to make important decisions in a child’s life. Those decisions generally include education, religious instruction, and medical decisions. … When parents share the right to make these decisions, they are said to have joint legal custody.  The court will also make a decision about “physical custody,” the actual schedule of time that the child(ren) will spend with each party.  Physical custody can range from 50/50 with each party to supervised visitation, and any amount of time in between, depending on the circumstances.  Remember that the court is supposed to enter a custody order based on the best interests of the child(ren) based on the evidence that the court hears.

What is Permanent Custody?

“Permanent custody” is a bit of a misnomer, as custody is always subject to review and modification by the Court until the child is of age, which is eighteen in North Carolina.  In order to modify the terms of a permanent custody order, a party must show a substantial change of circumstances affecting the child since entry of the last order.  To modify a temporary custody order, a party need not show a change in circumstances since the last order; a party must show that modification of the temporary order is in the interest of the child(ren).