North Carolina Law Blog

Child custody is often a contentiously debated issue. When both parties live in the same town, determining where to file the custody complaint is easy. As time passes, parents often move to different towns or even different states. Deciding where to file custody then becomes a bit more complicated.

The decision on which State to file for custody is determined by the Uniform Child Custody Jurisdiction Act (UCCJEA). Whether North Carolina is the appropriate state to file for custody may depend on whether the Court is making a decision for the first time (initial custody decision) or whether a party is seeking to modify a decision which was already made (modification).

Assuming North Carolina is the appropriate state to file for custody according to the UCCJEA, the next question is where in North Carolina a party should file (venue). Assuming no other domestic actions are currently pending, North Carolina allows a party to file for custody “in the county where the child resides or is physically present or in a county where a parent resides.” This means a party may have more than one choice of where in North Carolina to file for custody.

There are two types of custody in North Carolina. The first is legal custody. This refers to decision making authority regarding major decision such as health, welfare and education of a child. Legal custody can be held by one parent (sole legal custody) or it can be held by both parents (joint legal custody). The second type of custody is physical custody. This refers to where a child will live and how often visitation will occur. Like legal custody, physical custody can be vested with one parent (primary custody) or it can be shared equally between both parents (joint custody).

In determining custody, the standard applied by the Court is “the best interest of the child.”  A Court considers numerous factors in making this decision such as the parent’s role in caretaking, the age of the child, the availability of each parent, and misconduct on the part of either parent. Since “best interest” is the standard, a change in circumstances will allow for modification of an existing child custody order.

Contact Cristina Quantock today for more information regarding child custody.

People will usually seek the advice of an experienced attorney when trying to defend against a restraining order. Did you know you can also contact an attorney when you need assistance in obtaining a domestic violence protective order? Coming in to see an experienced attorney who can assist you in drafting your complaint for a restraining order can have a substantial impact on whether the order is ultimately granted. Our attorneys can not only help you to navigate the process of a filing for an emergency protective order, but we can also appear in court to assist in trying to obtain a final order (which is usually for a period of one year).

North Carolina allows for two different types of restraining or “no contact”
 orders. The less common type of order is under North Carolina General Statute § 50C. This type of order is meant for people who are not in a domestic or personal relationship. While our firm can certainly assist in trying to obtain this type of order, the most common restraining order sought is a domestic violence protective order. These orders are controlled by North Carolina General Statute § 50B. Below is some important information to know about domestic violence protective orders:

A victim of domestic violence can file for a domestic violence protective order or “DVPO” whenever they have a “personal relationship” with the other party. North Carolina law defines “personal relationship” widely to include various types of relationships such as husband and wife, boyfriend and girlfriend, parents and children, those who have a child in common, and current or former household members. Assuming a personal relationship, a protective order may be sought as a result of bodily injury or attempted bodily injury, fear of continued harassment, and various types of sexual assault.

Version 2. People often assume a separation agreement is required in order to be legally separated. This is not correct. The law is very specific on the definition of legal separation. In order to be legally separated, a party must be physically separated with at least one spouse having the intent to end the martial relationship. In North Carolina, a couple may be legally separated without entering into a separation agreement.

While not required, a well drafted separation agreement can provide a number of benefits.

First, a separation agreement can address all matters related to a divorce including alimony, property division, child custody, child support, and a waiver of claims against third parties. Rather than leaving the decision to a Court, a couple can negotiate almost any term which is not against public policy.

Perhaps the most difficult part of a divorce or when a couple separates is deciding how the children will be cared for in the future. Child custody in North Carolina includes decision making authority regarding a child’s welfare (legal custody) and where a child will live (physical custody). The best case scenario is for parties to decide upon what type of custody arrangement will apply to their children. Regardless of whether a couple decides on custody for themselves or a Court decides for them, learning to co-parent is perhaps the most important step forward.

Co-parenting is a process where two parents work together to raise a child even though they are divorced or separated and no longer live together. While co-parenting is a simple concept, in reality it can often be difficult to master.

The following are a few important tips to consider in learning how to co-parent:

One of the most common misconceptions for family law clients is when they are “legally separated.” Some people equate separation with the drafting of a separation agreement and believe they are not legally separated until pen has been put to paper. Others believe they are legally separated once one person moves out of the master bedroom and into the guest room. In fact, North Carolina law is very specific on the definition of legal separation. In order to be legally separated, a party must be physically separated with at least one spouse having the intent to end the martial relationship.

This means there are two important requirements in order to be legally separated in North Carolina. First, the parties have to be physically apart. This does not mean a couple is living in two separate bedrooms on different ends of the home. To qualify, the couple must actually be living in two different homes or locations. Most commonly, one person leaves the martial home to live in an apartment somewhere else. Separation can also include, however, an overseas deployment or temporary change in duty station (so long as the second requirement is also met). Second, at least one person in the relationship has to have the intent to end the martial relationship. This means at least one spouse has decided the marriage is over. The law does not require communication of this intention or desire to the other spouse, but communication is certainly an easy means of proving the exact date of separation. While separation agreements are great tools to use in addressing many of the issues which will arise in a divorce, an agreement is not required to be legally separated.

Once a couple has been legally separated for one year, they may file for a divorce. A party may file for a divorce in North Carolina so long as one person has been living in this state for the last six months.