The most difficult time for a family is during divorce or separation. Not only is it traumatizing to the couple but also it affects their children.   Several issues follow a divorce or separation. Such issues include child support, alimony, post separation support, and equitable distribution of property among others.

In the above examples, one of the most difficult for families in North Carolina is child custody. Child custody is difficult because it impacts the children in ways that can be far-reaching, especially if the parents have lots of conflict between them.   Therefore, the goal of parents should be to reduce conflict and reach an agreement that is best for the children..  However, what happens when parents cannot agree what is best for their children?

Absent a court order or written agreement in North Carolina, both the parents have equal rights to the custody of the child.    The law in North Carolina does not have a predisposition towards the mother or the father in child custody cases. Third party such as grandparents and other relatives can also have the right to the custody of a child in certain situations.

In North Carolina, the law of “best interest” applies to child custody cases.   The best interest of the child is, in the words of a famous child custody case from North Carolina, the “guiding star” upon which courts make child custody decisions.

There are two types of custody that courts makes decisions about: legal custody and physical custody.   Legal custody is about who makes decisions.  Physical custody is about the schedule of time with each parent.  These kinds of custody may be shared in various ways.  For example, one parent might have sole physical and legal custody and the other parent have visitation.  The parents might share joint legal custody and one parent has primary physical custody and the other parent has visitation

Child custody can be a matter of agreement between the parties. In such cases, they will sign a document settling child custody. However, in cases where they can not agree, the parents may go to mediation and court to resolve their differences.

In mediation a third person who is neutral comes in to try to facilitate an agreement between the two parties.  The mediator does not make any decisions; the mediator simply helps the parties get to a settlement.    Mediation is often less expensive and less time-consuming than litigation in court.

May the child decide whom he or she lives with?   In North Carolina, the answer is no.  However, the court may decide to consider the wishes of children if they are of an age where they can honestly express their preferences.


Scott Allen is a divorce attorney in Raleigh, NC with over eighteen years of experience in all areas of family law litigation and settlement.