Child Custody


Child custody decisions are often the most important and difficult part of a divorce.  Because our divorce lawyers appreciate the value of family, we do our best to carefully guide clients through the process and help them maintain stability and continuity for their children each step of the way. The child custody lawyers at Smith Debnam have been serving Raleigh families with compassion for years. This family law firm views our role as an advocate for our clients in making those decisions to help them protect and further their children’s best interests. We view our role as an advocate for our clients in making those decisions to help them protect and further their children’s best interests. We are focused on gaining a complete understanding of a client’s unique situation and developing a reasonable plan to assist in the transition to a healthy, single-family home.  Success in our attorneys’ eyes includes seeing our clients and their children move forward as a family after a divorce.

Legal & Physical Custody
North Carolina defines “custody” in two ways: legal custody and physical custody. Legal custody generally means decision-making authority for a child – who gets to make decisions about the child’s health, education, and overall well-being? This applies to the big decisions that must be made for a child that may have long-term impacts. Typically, short-term, day-to-day decision-making will fall to the parent who has physical custody of the child on any given day. Legal custody is often shared equally by both parents; however, in certain situations, legal custody may be given solely to one parent, or one parent may have the final say if the parents can’t agree on a major life decision for their child. When talking about “custody,” most parents are referring to physical custody. Physical custody means where a child lives and spends his or her time. Physical custody can also be awarded on a sliding scale – one parent may have primary physical custody with the other parent having less frequent visitation, the parties may share custody equally (or close to equally), or one parent may have sole physical custody. Physical custody arrangements can vary widely – folks often think about “every other weekend” joint custody schedules, but there are many others, and you can get creative in crafting a schedule that works for you, your family, and your child.

Determining Custody in North Carolina
Custody agreements can be addressed and determined in almost infinite ways in North Carolina. The parties may reach an agreement about custody on their own in a separation agreement or consent order, they may utilize the services of a mediator or arbitrator to help them decide, or custody may be up to a judge to determine. Regardless of the way in which custody is decided, it will be done by considering what is in the best interests of your child.

If a decision about custody arrangements cannot be made without a judge, a lawsuit will have to be filed in the county where you or the other parent lives. Except in a few limited circumstances (for example, if there is domestic violence or child abuse involved), you will be required to attend mediation prior to a judge making a decision in your custody case. Court-ordered mediation procedures vary from county to county, so be aware of county-specific requirements and timelines. This court-ordered mediation is done with just you, the other parent, and the mediation – no attorneys from either parties’ law office are allowed. If you and the other parent can come to an agreement regarding custody issues during this process, then a document called a parenting agreement will be drafted, reviewed by any attorneys that are involved in the case, and will be signed off on by the judge. This parenting agreement will then become a court order and can be enforced by the contempt powers of the court.

If you cannot come to an agreement, then the process moves forward with hearings in front of the judge. In some counties like Wake County, where there is a specific family court in Raleigh, your case will be assigned a judge. The same judge will hear your case as it progresses, following the idea of “one family, one judge.”

Courts can hear custody matters on both a temporary and permanent basis. Temporary custody hearings are generally shorter, quicker matters that establish a placeholder arrangement until the court can accommodate a drawn-out permanent custody trial. For both temporary and permanent custody determinations, the judge’s analysis and decision centers on what is in the child’s best interests.

The best interests of the child is a complex, multifaceted, and intangible determination. Very rarely is one particular action, occurrence, or situation the ultimate decision-maker for figuring out a custody arrangement. Each family and each child is incredibly unique, and what is in the best interests for your friend’s or neighbor’s child may not be what’s in your child’s best interests. Courts will consider a multitude of factors to figure out what is in a child’s best interests, including your conduct; the other parent’s conduct; the parents’ relationship with each other; the parents’ relationships with the child; transportation or location concerns; any physical, mental, behavioral, or emotional issues of either parent or the child; and anything that may have a bearing on one parent’s ability to care for his or her child. The judge has wide discretion in the weight that he or she gives to any particular piece of evidence presented – what you may consider to be a serious concern may not raise the same red flags for the judge, and something that you consider minor may be significant in the judge’s decision.

When a judge makes a decision about child custody and visitation, both legal and physical custody will be addressed, as well as any other requirements the judge puts in place. Other requirements may include therapy for one or both parents or the child, psychological evaluations, drug testing or monitoring, school enrollment, or anything else that may have a bearing on the child or how the parents care for the child.

Emergency Custody

North Carolina also recognizes limited circumstances where one parent may ask the court for emergency custody. Emergency custody can be awarded on a temporary basis if there is a substantial risk that the child is in physical danger (i.e., physical or sexual abuse) or if there is a substantial risk that the other parent may remove the child from the state for the purpose of evading the jurisdiction of the court. If a judge grants an order for emergency custody, a return hearing is required within 10 days.

Modifications to Custody 

If a child custody and visitation arrangement is in place and you want it to change, the process depends on the format of your current arrangement. If you addressed child custody in a separation agreement or contract that was not entered as a court order, then you may need to come up with a new agreement with the other parent and execute it with the same formalities of the original agreement. You may also consider filing a new lawsuit for child custody, which will initiate the judicial process.

If your current custody arrangement is part of a court order, you will need to file a motion to modify custody. This requires a showing of a substantial change in circumstances that affects the welfare of the child. If a court finds that there has been a substantial change in circumstances, then it will create a new custody arrangement – either legal, physical or both – that is in the best interests of the child. What a court considers to be a “substantial change in circumstances” can take many forms. It is important to remember that many life changes – like remarriage, new half- or step-siblings, or relocation – are not always, in and of themselves, sufficient to be a substantial change that also affects the welfare of the child. The simple passage of time may not, on its own, be sufficient either.

Preferences of the Child

Many parents often wonder if their children can or should testify about their preferences for custody and which parent they want to spend their time with. There is not a specific age or scenario where a child is “allowed” to testify, despite the myths that once a child is a certain age, the judge will do whatever he or she says. Judges will always be bound to act by what is in the child’s best interests, which may not always be what the child wants. However, for a child of “sufficient age to exercise discretion,” the judge should give “considerable weight” to that child’s wishes. 

Figuring out what is best for your family for child custody and visitation can be incredibly difficult, and thinking about all the factors and contingencies that come into play can be overwhelming. Our attorneys can help you navigate this complex and emotional process and help you determine your options.


“The Smith Debnam team helped me to settle my divorce case. They were responsive, prompt, and courteous. They helped me to navigate a complicated process and advocated for what was in my children’s best interests. I found the front desk staff helpful and I could not have asked for a better experience with the divorce itself, all thanks to Smith Debnam.”
– Erin B.


Contact Smith Debnam Today

From our office in Raleigh, we serve clients throughout central North Carolina. To schedule a consultation with a Raleigh child custody attorney at our firm, call  919.250.2000.

How can I make sure my child’s emotional needs are being met through this process?

Children react differently to the transitions surrounding a divorce. It is common for them to feel abandoned or that the divorce is their fault. It is important to be aware of a child’s behavior during this time and to avoid placing the child in the middle of a dispute regarding the other parent. Aside from refraining from words or actions that would disparage the other parent to the child, it may be appropriate to seek the advice of a counselor or other professional to make sure the child’s emotional needs are being met through this process. An attorney or pediatrician should be able to recommend a good professional counselor or psychologist.

What kinds of custodial schedules are possible?

Any custodial schedule that will serve the child’s best interests can be considered. Traditionally, one parent may have had primary physical custody and the other parent may have had visitation with the child on alternating weekends. These traditional kinds of schedules still occur in a number of cases, but more equal custodian arrangements are not uncommon. In very few cases based on extreme facts, one parent may have physical custody of a child and the other parent may have supervised visitation or no visitation at all.

What are a parent’s rights regarding custody when there is no agreement or order in place?

Absent an order or agreement, the parents of a child generally have equal rights as to the custody of their child. It is ultimately better to have a written understanding about each parent’s rights to not only clarify expectations, but also to provide clear direction to the child’s schools and doctors.

What is the difference between legal and physical custody?

Legal custody determines who makes the major decisions for the child. Major decisions include health, welfare, education and religion. Physical custody determines where the child resides and the custodial schedule between the two parents. In most cases, regardless of the physical custody agreement, parents have joint legal custody, meaning that making major decisions regarding the child is a shared responsibility.

What about grandparents’ rights?

Grandparents have limited rights regarding custody. In some circumstances, grandparents may intervene in pending custody actions to ask for visitation. In very limited cases, it may be appropriate for grandparents to ask for custody of their grandchild where the child’s parents have chosen, in some way, to ignore their right to parent, have delegated to a third party the right to parent the child or when the parents are determined by the court to be unfit.

Can a parent take his or her child out of the state?

Assuming there is no formal agreement or court order either allowing or prohibiting out-of-state travel or relocation, taking a child out of the state depends on the particular facts of the case. In some instances, taking a child out of the state with the intention of relocating that child may have a negative effect on a case. It is important that when issues of out-of-state travel or significant relocation within the same state arise, that a client consults with an attorney to discuss how to best handle those issues in the least problematic way.

What age can a child decide which parent to live with?

The law does not specify an age for a child to decide with which parent he or she wants to live. A child who is of a reasonable age and level of maturity may express his or her desires to the court, and the court may consider that child’s desires in reaching a decision about custody. However, the court is not bound by the child’s comments.

How is child custody determined?

Child custody can either be agreed upon by the parents, or a court can make a decision about child custody. When a court has to make a decision about child custody, it must decide all custody issues based on what is in the child’s best interests. In determining what custodial arrangement is in the child’s best interests, the court may consider who has been the primary caregiver of the child, what has been the previous custodial arrangement, and whether there are any special needs or extenuating circumstances surrounding the child or the family. These factors are just a few of the many criteria a court can consider in custody cases.

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