Child custody issues are difficult for everyone involved. We at the McIlveen Family Law Firm understand the delicate issues you are facing and we know the law.
Can we agree to child custody in a separation agreement?
Yes, and many people are able to agree without going into court. This is often done by a separation agreement. Often times this is the best approach. In North Carolina you can settle custody and child support issues by agreement. You do not have to go to court.
We don’t have a custody agreement and there isn’t a court order so who has custody of our child?
You both do. Without an order from a judge or an agreement you both share equal rights to the child of the marriage. However, the informal arrangements you make can be broken or changed at the whim of either parent.
Can my child decide who he/she wants to live with?
Maybe. If your child has the sufficient mental capacity to offer a reasoned opinion about where he/she wants to live then the child can testify either in open court or the judge may hear the child in chambers. The child’s wishes are “entitled to considerable weight” but they are not controlling on the judge’s decision. In other words, the judge has to consider what the child wants but can rule differently if there are reasons why the judge thinks the child would be better off living with the other parent even though it isn’t what the child wants.
If we can’t reach an agreement and we have to go to court how will the judge decide where our child will live?
In N.C., child custody is determined by a judge. You are not entitled to a jury trial on the issue. The judge will listen to testimony of witnesses who are called by both parties and make a decision about what “is in the best interest” of the child. The judge has wide latitude to decide the case how he sees fit. As you can imagine it is important to know the judge and how he/she often rules in certain situations. The judge can decide to give both parents equal custody or give one parent physical custody and the other parent visitation. In rare cases where the child is in danger the judge may order no visitation or supervised visitation.
As you can see child custody issues are as complex and varied as the people experiencing them. If you want more information about your particular case contact the McIlveen Family Law Firm to schedule a consultation.