When a couple separates, decisions must be made regarding the care and welfare of the couple’s children. In North Carolina, child custody is settled either through a separation agreement or by a court order. If the parties voluntarily execute a separation agreement, they determine the outcome with regard to the ultimate custody and visitation arrangement. This allows the parties to retain control over the custody and visitation decisions and avoid having a judge dictate the result. A separation agreement may address all aspects of custody and visitation, such as which parent has primary physical custody, whether the parties have joint or sole legal custody, the visitation schedule, and custody or visitation during holidays.
If the parties are unable to resolve custody and visitation through a separation agreement, then those matters will be decided in court by a judge. Courts in North Carolina determine custody based on what is in the “best interests of the child.” When a custody action is filed, the parties are required to participate in a state-sponsored mediation with a mediator unless certain exceptions apply. Only the parties attend the mediation; the attorneys are not permitted to attend. If an agreement is reached, then it is reduced to writing and signed by a judge as a court order. The parties are not required to reach an agreement and a mediator cannot impose an agreement on the parties.
If the parties are unable to resolve custody and visitation at mediation, the case goes to trial. There are many factors that a judge will consider in determining what custody and visitation arrangement is in “the best interests of the child.” All relevant factors are considered. Such factors include who has been the child’s primary caregiver, each parent’s role in caretaking, the age of the child, each parent’s work schedule, the bonds the child has with each parent, the presence of siblings, and misconduct by either parent (such as abuse, neglect, or domestic violence).
“Joint legal custody” refers to an arrangement in which both parents collaborate in making decisions regarding a child’s welfare, such as the child’s medical care and education. “Sole legal custody” means that one parent has the authority to make such decisions regarding the child’s welfare. A court may grant legal custody to one or both parents.
Physical custody refers to the spouse with whom the child resides. A court may order physical custody primarily with one parent or with both parents. Often, a court will order one parent to have primary physical custody and the other parent to have secondary physical custody or visitation.