North Carolina is a rare state where issues of child custody are most often decided by consent between the parties. Custody arrangements do not have to be submitted to or signed off on by a judge to be enacted into an order. According to the Rosen Law Firm with offices in Raleigh, Durham and Charlotte, only a small percentage of custody cases are litigated here. When this does happen, North Carolina adheres to the "best interest of the child" standard.
Any person or agency may petition the court to decide issues of custody according to North Carolina General Statutes Sections 50:13.1 through 50:13-9. When the dispute is between parents, however, North Carolina requires that they must first have attempted to mediate their differences with a court-appointed third party. North Carolina subscribes to the Uniform Child Custody Jurisdiction and Enforcement Act which provides that a parent's rights cannot be terminated or changed without notice and the opportunity to appear in court whether they live in the state or not. The UCCJEA also builds in protection against a parent who might want to shop jurisdiction by relocating to another state whose laws may be more favorable to him.
The concept of joint custody is not prevalent in North Carolina. More likely, if your matter is litigated to conclusion, the judge will award one parent primary physical custody, meaning that the child lives the majority of the time in that parent's home. Secondary custody is North Carolina's term for visitation rights. A judge may also vest sole power to make major decisions on the child's behalf with the parent who has primary physical custody. This sort of arrangement is commonly referred to as sole custody. The term joint custody does have child support implications, however. If the parent with secondary custody has visitation 123 nights a year or more (more than two nights a week) a joint custody worksheet is used to calculate child support.
A parent's right to have custody of his child over a relative or non-relation is nearly absolute in this state. North Carolina has also abandoned what was once called the tender years doctrine, which heavily favored mothers in custody issues. However, in the case of infants and toddlers, many judges still lean toward the mother for primary physical custody.
The Role of the Child
North Carolina statutes do not obligate a judge to consider the child's preference when deciding custody, but judges do have that option and many will use it. While some states set a given age after which a child can testify on his own behalf, North Carolina courts make this determination on an individual basis after considering the maturity of the child. Rarely is the child put through the stress of being placed on the witness stand. He will be interviewed "in camera," meaning that his testimony is taken in a more relaxed setting in the judge's chambers and by the judge rather than the opposing attorney.
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