A Court’s Role:  Best Interest of the Child Standard

In North Carolina, if the parties are not able to come to an agreement on a custodial schedule, a custody action may be filed by either parent in District Court in the county in which the child resides. It is important to note that a court will not be able to hear the case unless the child was a resident of North Carolina for at least six consecutive months immediately before the commencement of the action. After the parties file a court action for custody, the parties are required to attend mediation and a parenting program, such as the Children’s Home Society of North Carolina, Inc.’s “Parenting Under Two Roofs,” offered through Family Life Education Services, before their custody dispute can be heard by a judge. These mediation programs are provided at no charge to the parties through the North Carolina Child Custody and Visitation Mediation Program. Unlike mediation in the ADR context, your attorney is typically not involved in the initial court-ordered mediation program.

If no agreement can be reached in mediation, custodial issues will be set for trial in front of a judge. At the trial, both parties will have the opportunity to introduce evidence and testimony that presents their contention as to the best custodial schedule. At the conclusion of the trial, the judge will sign a custody order that determines who is awarded the child’s legal and physical custody. North Carolina law requires that the judge make this decision based on the best interest of the child standard.

Under the best interest of the child standard, which is set forth in North Carolina General Statute § 50-13.2(b), the judge is to determine what “will best promote the interest and welfare of the child.” The court is to consider any and all relevant factors of the child’s domestic life, and will make the final decision based on who is best suited to take care of the child. If all other factors are the same, then no preference is to be given to the mother over the father or vice versa. Natural parents are generally favored over third parties, such as grandparents, aunts and neighbors, unless the parents have acted in a manner that is not in the best interests of their children. Although the court may consider the wishes of older children in crafting a custodial or visitation schedule, the court will not let those children decide such issues.

The custody order that the judge signs will set forth the rights and responsibilities of each parent. These rights and responsibilities would establish all of the specifics of how the parties are to co-parent, including setting forth who has legal custody, who has physical custody, the details of how physical custody is to be shared, any special schedules dividing time around holidays, whether there are any restrictions on either parent, how the child will be transported between the parents’ homes, the method and frequency by which the parents are to communicate regarding the child, the method and frequency by which the parties can communicate with the minor child when they are with the other parent, and other rules on how the parties are to effectively co-parent the child and conduct themselves in relation to that child. Only the assistance of qualified legal counsel will ensure that you are being properly represented during custody litigation and a trial.