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Frequently Asked Questions

Child Custody FAQ's

 

Will my child have to testify in court?

When can a claim for child custody be filed? Once a child custody order has been entered, can it be modified?

Do grandparents have rights to custody and/or visitation in North Carolina?

What does visitation mean in North Carolina?

What is joint custody? What is sole custody?

What is a custody evaluation and when should one be conducted?

What impact could dating have on child custody?

Do the North Carolina Courts favor one parent over the other in custody cases?

Do children get to decide who they will live with?

Can I change my minor child's last name without permission from the other parent?

 

 

 

 

 


Will my child have to testify in court?

 

 In North Carolina, it is entirely in the judge’s discretion as to whether the testimony of a child will be heard.  If a judge determines that a child is of appropriate age and maturity to provide the court with helpful information, the court may order the child to testify. The judge has the ability to require the testimony of the child to be given in private in his/her chambers.  The judge may require the attorneys for the parties to be present during the questioning or may require that the attorneys not be present during the questioning. Typically, judges will do everything possible to prevent the child from having to testify in any capacity in an effort to avoid traumatizing a young child. As the child grows older and/or reaches the age of majority (18), the court may require him or her to testify in an open courtroom. These issues should be discussed with your attorney as you prepare for court and your concerns should be addressed thoroughly and completely with your attorney.

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When can a claim for child custody be filed? Once a child custody order has been entered, can it be modified? 

If there is no order or agreement by the parties resolving the issue of child custody, a child custody claim may be filed by any party at any time so long as the parties reside separate and apart.  Custody is always modifiable by the courts. The courts have the inherent responsibility to protect the best interests of the minor children of this state. As a result, the Court is always willing to hear motions to modify any type of custody order that's been entered if certain changed circumstances can be shown. A party moving the Court to modify a child custody determination has the burden of showing that since the entry of the last order, there has been a substantial and material change of circumstances affecting the best interests and welfare of the child(ren). Only if this burden has been met, may a court modify the previous order setting forth custody.

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Do grandparents have rights to custody and/or visitation in North Carolina?

Grandparents generally have standing to sue for custody of their grandchildren if they allege parental unfitness or child neglect, even if there is no ongoing custody dispute.  However, even though grandparents may have standing to seek custody, they may not have standing to seek visitation under similar circumstances unless there is an ongoing custody dispute. Under current North Carolina law, grandparents may be granted visitation rights provided there is an ongoing custody dispute.

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What does visitation mean in North Carolina? 

In general, visitation falls under the "custody" umbrella. Oftentimes, courts would enter custody orders that granted 'custody' of a minor child to one party and 'visitation' of the minor child to the other party.  However, courts are moving in the direction of using the terms of primary and secondary custody.  Primary custody is the term used to described where the child(ren) will spend most of his/her/their time whereas secondary custody is used to describe where the child(ren) will spend less time.  In many cases, both parties are entitled to exercise visitation with the minor child.  You must keep in mind that each case is different and the court is empowered to order whatever type of visitation it believes is in the best interests of the child(ren).

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 What is joint custody? What is sole custody?

There is no set definition in North Carolina as to joint custody or sole custody. Many people believe that joint custody represents a true sharing of time and expenses for their children. Joint custody may sometimes be further classified into primary and secondary custody or physical and legal custody. Sole custody is often thought of as a situation where one party has the primary physical and legal control over a child or children and the other party simply has visitation rights. Again, there is no set definition in North Carolina statutory or case law for joint or sole custody. Each case is different from the other and a court will make arrangements as it sees fit and which serve the best interests of the minor children involved.

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What is a custody evaluation and when should one be conducted? 

A custody evaluation is when an objective third party is paid to assess each of the parents in order to assist the court in making a determination as to custody. Either party may ask the court to have a custody evaluation performed. As a matter of logistics, it is preferable to have a custody evaluation requested early on in the legal process so as not to cause unnecessary delay. Custody evaluations may take anywhere from a week to a month, depending on how in-depth the evaluation is. In addition, the evaluation may involve interviews with the parties as well as collateral witnesses and psychological testing of both parents and the children.

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What impact could dating have on child custody? 

There could be ramifications from dating when you are involved in a child custody case. For example, if the person you are dating is considered by the court as someone who is not in the best interests of the children whose custody is in dispute, it could cause a judge to award custody to the other parent.  A Court may determine that a new boyfriend or girlfriend is not a good influence on the child(ren) and should not be allowed around them.  Courts are not in the habit of making moralistic rulings but a Court may determine whether a relationship is in the best interests of the child(ren).

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Do the North Carolina Courts favor one parent over the other in custody cases? 

No.  The tendency of the Court to favor the mother over the father has been formally abolished pursuant to N.C.G.S. 50-13.2(a). Therefore a Court's primary concern is make a determination as to who will “in the opinion of the Judge, best promote the interests and welfare of the child.” N.C.G.S. 50-13.2(a).

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 Do children get to decide who they will live with?

A court may take the wishes of the child into account when making a child custody determination but the Court must consider a number of different factors with the wishes of the child being just one of several factors.

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Can I change my minor child's last name without permission from the other parent? 

Unless the other parent's parental rights have been terminated, you can not change a minor child's last name without the other parent's consent.

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