What Is the Court Procedure In Custody/Visitation Cases?
One of the parties begins the process by filing a Complaint (lawsuit) for custody or visitation. The parties generally must attend mandatory court mediation before a trial will be scheduled. In some jurisdictions, the parties must also attend parent education classes. In extreme cases, the court may appoint a Guardian ad Litem to represent the children or a mental health professional to perform a psychological evaluation of the parties and/or the children. At a trial, the court will hear evidence and will decide what custody and visitation arrangement is in the best interests of the children.
In North Carolina, child custody is based on legal custody and physical custody. Legal custody is usually joint and will involve the major life decisions that need to be made regarding the child. For joint custody to be successful, the parents need to be able to communicate effectively and to cooperate in parenting their child together. Physical custody is more detailed and we will describe that now.
The initial child custody determination is based on the best interests of the minor child. This is in the typical scenario where a mother and father separate and have a custody dispute. The court will look at all aspect of the child’s life, as well as the parents, and make a determination as to where the child’s best interest will be served. There is no presumption favoring mothers over fathers or vice versa. All other things being equal, mothers and fathers have equal rights to the custody of their children.
There is though a presumption favoring natural parents over third parties, such as grandparents, aunts, and neighbors. Natural parents have protected rights to parent their own children, however, they can lose those protected rights if they take actions that are inconsistent with their protected status. If you are a grandparent or aunt or uncle or other third party, and you are seeking custody, there is a large burden you must overcome in order for you to obtain custody. Parents have a constitutionally protected paramount status to custody. There must be some very egregious facts, which can be discussed in detail with you in order for a third party to obtain custody of the minor child.
Assuming two parents, the court will look at all facts and then award custody to the party with whom the child’s best interest will be served. Under the standard custody arrangement, there would be visitation with the non-custodial parent. The parties can agree on absolutely anything, and the Court can do whatever it feels is in the children’s best interests.
Oftentimes people hear about a standard schedule for visitation. For example: every other weekend from Friday to Sunday at a certain time, say 5:00 p.m. or 6:00 p.m. Father’s Day with the father regardless of scheduling. Mother’s Day with the mother regardless of scheduling. Usually some block of time with the non-custodial or visiting parent on the child’s birthday. The holidays can be split either in alternating years or half-and-half during the particular holiday break. Usually 3 nonconsecutive weeks during the summer with the non-custodial parent.
While this is the typical arrangement many people think about, the underlying key fact is what is in the best interest of the child. Some other examples might include week to week or extended weekends Thursday instead of Friday or Monday instead or Sunday. A lot of this will depend on various factors including the ages of the children, the children’s schedules, how far apart the parents live, what school or schools the children attend, and the work schedules of the parents.
With any custody case, expectations must be realistic. For example, if one party does not want the other party to have any visitation whatsoever with the child, this is an unrealistic expectation. Absent unfitness, it is extremely unlikely that a court would stop a parent from having visitation with their child.
Custody and visitation arrangements are always subject to change when circumstances affecting the children’s best interests change substantially. If you are seeking a modification of child custody, this is a two-prong test. The first prong requires that the moving party demonstrate a material and substantial change in circumstances that affects the welfare of the child. If this can be done, then the first prong is met, and then the court will look at the best interest of the minor child. It is important to note that this first prong must be met before the court will consider the best interest of the child. If there is not a material and substantial change of circumstances that affects the minor child, then there will be no consideration of the best interest of the minor child.
Also note that while the court may consider the wishes of older children, the court will not let the children decide custody or visitation issues..