CHILD CUSTODY BASICS: LEGAL AND PHYSICAL CUSTODY, MEDIATION AND ATTORNEY’S FEES

In Divorce, Explained, there were 5 typical claims discussed: (1) child custody; (2) child support; (3) spousal support (e.g., postseparation support and alimony); (4) equitable distribution (i.e., distribution of marital assets and debts); and then (5) divorce. Here, child custody basics will be addressed along with mediation and attorney’s fees related to custody. 

In North Carolina, there are two types of custody: legal custody and physical custody. 

• Legal custody generally refers to the right and responsibility to make decisions with important and long-term implications for a child’s best interest and welfare. 
• Physical custody generally means the right to have the child in your physical care. 

In determining custody, the Court decides what will best promote the interest and welfare of the children. The Court is vested with broad discretion in deciding what is in the best interest of the child and must consider all relevant factors, and then choose the environment that will best encourage full development of the child’s physical, mental, emotional, moral, and physical faculties. However, between parents, there is no presumption as to who will better promote the interest and welfare of the child.

The Court may grant joint or sole custody to one or both parents. An Order for custody of a minor child may provide for visitation rights by electronic communication. Electronic communication with a minor child may be used to supplement visitation with the child but may not be used as a replacement or substitution for custody or visitation. An Order for custody of a minor child may also provide visitation rights for any grandparent of the child as the Court, in its discretion, deems appropriate. 

In an action involving child custody, parties are required to attend mediation to resolve issues of custody and visitation before (or concurrent with) the setting of the matter for hearing, unless the Court waives mediation for good cause. Good cause may include, but is not limited to: a showing of undue hardship to a party; an agreement between the parties for voluntary mediation, subject to Court approval; allegations of abuse or neglect of the minor child; allegations of alcoholism, drug abuse, or domestic violence between the parents in common; or allegations of severe psychological, psychiatric, or emotional problems; or a showing by either party that the party resides more than fifty miles from the Court. 

Mediation proceedings shall be held in private and shall be confidential. Any agreement reached by the parties as a result of the mediation is reduced to writing, signed by each party, and submitted to the Court as soon as practicable. Unless the Court finds good reason not to, it incorporates the agreement in a Court Order, and it becomes enforceable. If some or all of the issues as to custody or visitation are not resolved by mediation, the mediator shall report that to the Court.

Also, in an action or proceeding for the custody or support of a minor child, the Court may in its discretion order payment of reasonable attorney’s fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit. A party satisfies the element of good faith by demonstrating that he or she seeks custody in a genuine dispute with the other party. A party has insufficient means to defray the expense of the suit when he or she is unable to employ adequate counsel in order to proceed as a litigant to meet the other spouse as litigant in the suit. There is no requirement that a party win their case to be entitled to attorney’s fees.

While these are the Child Custody Basics, each custody matter is unique and nuanced. If you are contemplating pursuing custody of your child, seeking the guidance of someone well-versed in the process—a family law attorney—is important. While attorneys do not have a crystal ball to predict the future, at Dozier Miller Law Group, we have decades of experience in family law. Contact a member of our family law team today and schedule your initial consultation.

This information is provided for informational purposes only; it is not offered as and does not constitute legal advice.