|The following information was published by the North Carolina Bar Association as a public service
Child Custody/Visitation and Child Support
Generally, the care and support of his or her children
are a parent’s primary concern. When disputes about
custody, visitation, or child support arise in the context
of a separation or divorce, they can be particularly difficult
for parents. When parents cannot agree about custody,
visitation, or child support, the children suffer as
well. Children detect conflict between parents. Children
often imagine that they are the cause of the conflict.
Children want to please both parents and feel caught in
The most important thing to remember in a separation
is that children take their cues from their parents. If
a child’s parents are hostile and bitter, the child will be
hostile and bitter. If a child’s parents are civil and
respectful to each other, the child will adjust to the separation.
Parents must make it clear to children that they
are not the cause of the separation. Children need to
know that they are loved by both of their parents and are
free to love both of their parents. Parents should never
fight, argue, or speak ugly to each other in the presence
of their children. Each parent needs to encourage his or
her child’s relationship with the other parent. Parents
need to insulate children from the adult issues. Parents
who are able to put the best interests of the children
above their own are much more likely to raise happy,
healthy, well-adjusted children.
Who is Entitled to Custody?
In order for a court to grant custody, the court must find
that the custodian is a fit and proper person to have custody
and that custody with that person is in the best interests of
the children. There is not a presumption favoring mothers
over fathers. All other things being equal, mothers and
fathers have equal rights to the custody of their children.
There is 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, natural parents can lose those protected
rights if they take action that is inconsistent with the
best interests of the children.
What is Sole Custody?
Sole custody means that one person has sole decisionmaking
power over a child and typically has primary physical
custody of that child.
What is Joint Custody?
Joint custody means shared decision-making power
over a child. It does not necessarily mean equally shared
physical custody. When parents have joint custody, they
share in major decisions about a child, and often each parent
has the child more than every other weekend. For joint
custody to be successful, the parents need to be able to
communicate effectively and to cooperate in parenting
their child together.
How is Custody Determined?
Custody may be agreed upon by the parties. If it is, the
parties may set out the terms of their custody agreement in
a Separation Agreement or a Parenting Agreement. These
Agreements are usually not filed with the court. If the parents
are unable to agree on their own, they can try mediation
or arbitration. If they do not wish to try mediation or
arbitration, they can go to court and let a judge decide.
What are Visitation Rights?
If one parent has custody, the other has the right to have
visitation with his or her child. There are no general rules
about when and how much visitation the noncustodial parent
should get. That depends on various factors including
the ages of the children, the children’s schedules, how far
apart the parents live, and the work schedules of the parents.
When determining a visitation schedule for the non
What is the Court Procedure in
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
What is Mediation?
Mediation is when a neutral third party helps facilitate
an agreement between the parties. The mediator does not
make decisions. The parties make the decisions, but the
mediator helps them. You can do private mediation before
or after a Complaint has been filed. In addition to resolving
custody issues, you can address all support and property
issues in a private mediation. Mediation is generally less
expensive and not as time-consuming as court. The parties
control the outcome. The entire process can be settled in
one day, and you can leave a private mediation with a
binding settlement document. The process is very civil and
dignified. It can set the tone for how the parties deal with
each other from that point forward. If the parties are able
to resolve the issues related to their separation at mediation,
typically they work together and treat each other better
in subsequent dealings with children or otherwise. You
do not necessarily need a lawyer for mediation, but we recommend
it. A non-lawyer mediator will not know the law.
Without an attorney, you could lose or waive rights you did
not know you had.
Is Custody Ever Permanent?
No. Custody and visitation arrangements are always
subject to change when circumstances affecting the child’s
best interests change substantially.
Can the Child Decide?
No. The court may consider the wishes of older children,
but the court will not let the children decide custody
or visitation issues.
How is Child Support Determined?
If the parties’ combined income is less than $300,000
per year, child support is determined based on the North
Carolina Child Support Guidelines. There are generally
four numbers that are needed to calculate child support: 1)
Mother’s gross monthly income; 2) Father’s gross monthly
income; 3) Children’s portion of the monthly health
insurance premium; and 4) Work-related childcare costs. If
either parent has other children in the home or for which
he or she pays child support, those numbers are included in
the calculation as well. There are different worksheets
used in the calculation depending on the custodial arrangement.
The Guidelines and the worksheets are available at
the Clerk of Court.
When Does Child Support Terminate?
Child support generally terminates when a child turns
18 or graduates from high school, whichever occurs later.
If the child turns 18 before graduation, child support continues
until graduation. If the child graduates before turning
18, child support continues until the child turns 18.
Child support may terminate earlier or extend later but
only in certain rare circumstances.
What Happens if I Don’t Pay?
You can be held in contempt or prosecuted for failure to
pay child support. You can be put in jail. Your driver’s
license and other licenses can be suspended. Your tax
refunds can be intercepted. The courts have a host of
options to enforce child support orders.
Can Child Support be Changed?
Yes. Either parent may seek a change (increase or
decrease) in child support at any time if a substantial
change in circumstances has occurred after the order was
entered by the court. Asubstantial change in circumstances
is presumed by the court if the request to change the support
order is made three or more years after the entry of the
order and there is a 15% difference between the amount of
support being paid and the amount of support that would
be required with new calculations under the Guidelines.
custodial parent, the parties (or the Court) should consider
weekdays, weekends, holidays, and summer. As with custody,
the parties may agree on visitation in an Agreement.
If they cannot agree, they can try mediation or arbitration.
If they do not wish to try mediation or arbitration, they can
go to court and let a judge decide.
Contact David R. Huffman