DIFFICULTY: Legal assistance is recommended
Initial Filing Fee: $15
Initial Filing Fee: Varies from county to county and depends on the use of mediator, but typically $15
North Carolina is trying to reduce the impact on the courts of child custody disputes. Parents who work together with a mediator to come up with reasonable custody arrangements on their own are rewarded with diminished filing fees and a quicker turnaround on the process. Fathers are granted automatic rights only if the child is born in wedlock. If born outside of marriage, it is advisable for a father to voluntarily file paternity with the court. If paternity has never been filed, winning custody can be more difficult for a father, and he will likely have to submit to a DNA test.
The North Carolina system does not give automatic preference to the mother when it comes to custody. Many different factors are considered, such as:
• The desires of the parents
• The desires of the child/children
• The ease of continued interaction with all relatives, including siblings
• The location of the suggested home, with relation to the current school and community of the child
• If the parent is trying to take the child out of state
• The physical and mental health of both the parent and the child
• How compliant the parent has been with previous court orders
• If there are any crimes on the parent’s record
North Carolina recognizes three types of custody arrangements. Sole custody means the child lives with one parent and the other only has supervised or limited visitation. Primary custody means the child spends most of the time with one parent, but has set times to visit the other parent (ex: every other weekend, specific holidays, etc.). Finally, joint custody means the child splits his or her time evenly between both homes. The courts attempt to work toward primary or joint custody most of the time, so that both parents are included in the child’s life.
Step 1: Choose Custody Hearing or Mediation
Whether you are going through a divorce and arranging custody or looking to change the current custody arrangement, you can handle it through mediation in North Carolina. If both parties are amenable, you sit down with a third party mediator to hash out the details of custody. If you wish to have a hearing, then you should propose the new custody arrangement and await a court order for the case.
Step 2: Propose New Custody Arrangement
Lay out exactly what you expect regarding custody. Choose what type of custody you are filing for, including a yearly calendar for visitation, and then propose how the transfers will happen. You should be as thorough as possible, leaving little room for ambiguity or error. A legal document like this is the best way to protect your rights. Unlike other states, North Carolina does not have a specific age when children get to decide what parent they live with. Children are usually consulted when they are 9 or older.
Step 3: Complete the Affidavit
The affidavit covers all the parts of the custody. You will provide the court with the names of the children, the locations of the parents, and all the pertinent details as to why you are filing for custody. This can be completed by you or a lawyer, according to your preferences. You will attach the completed custody proposal to the affidavit for filing.
Step 4: File for Jurisdiction
Take the completed packet to the Civil Filing Department of your county. You will need two copies and the original in order to file; the original goes to the court, one copy is yours, and one copy is for serving the defendant. You can make this petition in your county in North Carolina even if the child does not reside there. Once the papers are filed, you will proceed to Family Court to get a date scheduled for your hearing, and your case is officially on the books.
Step 5: Service of Defendant
It is your responsibility to ensure that the defendant is served according to North Carolina law. In other states, like Georgia, the county will take care of service for you, but in North Carolina you have a few options to consider. You can pay the sheriff’s fee and have it served by the sheriff; if the other parent is in the same county, this is usually easiest. If the parent is in another county, then you have to get the paperwork to that county’s sheriff so that they can serve the defendant. You can also send the paperwork via certified or registered mail. In order to do this, you must also file an Affidavit of service of Process by Certified or Registered Mail once you receive the return receipt, and it must be notarized.
Step 6: Attend the Hearing
The hearing is where your spouse will either agree to the custody arrangement you proposed, or you will hear their counterproposal. The judge will make the final determination after asking you a series of questions. In North Carolina, a hearing is not necessary if you come to an agreement through mediation. The mediator simply gets the judge’s signature and the custody is settled.
Step 7: Obtain the Custody Order and Enforce the Order
The custody order will be certified by the judge and you will receive a copy. From there, it is your responsibility to stick to the agreement and note any infractions, so if you ever go back to court you have specifics regarding problem areas with the agreement.