Family: Factors Considered by the Court in a Custody Case
Once a parent is identified as the primary caregiver, often the court awards custody to that person. The primary caregiver is generally the parent that the child lives with on a regular and consistent basis. If the parents were married, the primary caregiver is typically the parent the child lives with after separation.
HOWEVER: other factors may be considered and depending on the circumstances, the court may give custody to the noncustodial parent, that is, the parent who does not have the child.
This means that the the Court is likely to favor the decision that causes the least change in the child’s life.
When parents are employed, it is important that they have a plan for the care of the child. When custody is being decided, it is important that an employed parent who seeks primary custody has made dependable care arrangements for the child or children.
There are times when the court has favored the parent who requires fewer child care arrangements or the parent who can stay at home, but the main consideration is the best interest of the child.
The judge is not required to speak to the child to see what the child's wishes are. Each judge makes an independent decision on whether or not to speak to the child. If the judge does decide to speak to a child to hear the child's wishes, North Carolina law does not require that the child be a specific age; this decision is up to the judge. The older the child is, the more likely the judge will consider the child's wishes.
NOTE: If the child is of suitable age the court must hear testimony, if offered.
How the judge gets the child's testimony
Many judges prefer to take testimony of the child in the judge's chambers. BUT, unless there is consent, the judge may not speak with the child outside the presence of the parents and their lawyers.
The preferred way to get testimony of a child is in open court.
When the child appears to have a good basis for his opinion, the child’s wishes are given the most importance. For example, the child may want to be with a brother or sister.
North Carolina law requires the court to consider acts of domestic violence (DV) between the parties. North Carolina law also requires that a custody court order in a case in which DV has occurred must include provisions that best protect the children. This type of custody court order may include specific provisions for exchange to make sure the children are protected.
NOTE: If you had a prior DV complaint that has been dismissed, you may be prevented from bringing evidence of DV in a later custody action. This is because the DV has already been decided by a court.
You have to separate the reasons for your separation or divorce from issues of custody. In other words, it is possible for a bad wife to be a good mother or a bad husband to be a good father. The standard in a custody case is not to reward or punish the parent but to determine the best interest of the child.
NC law allows consideration of a parent’s sexual conduct but with limits:
1. The Court must find that the conduct has a bad impact on the children.
2. The Court must consider the sexual conduct along with all other factors.
REMEMBER: The judge does not automatically assume harm to the children because of the sexual conduct of the parents.
* A parent who commits adultery may still be granted custody. For example, this could happen if there is evidence that the parent is the primary caregiver, attends to the child's emotiona and physical needs, and can provide a stable home.
* The fact that a parent lives with someone in the home where the children live is not enough to grant or change custody. The court must consider facts of sexual conduct but without any evidence of a bad impact, it cannot base custody solely on the sexual conduct of a parent.
Even if the sexual conduct affects the child, the court must also consider the sexual conduct together with all other factors.
If the children have lived together, it is generally believed that keeping the children together is in the best interest of the children. Also, if the original court order divided the children, the court may be more likely to modify (change) that order if the change will reunite the children.
HOWEVER: Other factors may be considered, and having siblings in the household does not mean you will be granted custody. For example, siblings might be separated if the children are far apart in age or if one child has a strong desire to be with a particular parent.
The First Amendment to the US Constitution prohibits the court from choosing between parents because of religious beliefs. For example, the court may not choose a Christian mother over a Muslim father. The court should make a decision that causes the least possible violation in the religious practices of the parents.
The court may look at which parent better takes care of the child’s spiritual needs. The court may find that one parent does not tend to the spiritual needs of the child and award custody to the other parent.
NOTE: If the parents’ religious beliefs are different and conflicts arise that affect the child in a bad way, the court’s goal is to reduce the stress to the child. This may mean giving exclusive control over religious training and practice to one of the parents. To do this, the court must make findings showing that the conflict over religious practices has had a harmful effect on the child.
The court may limit the religious practices of parents if there is evidence of actual or potential harm to the child. This may happen, for example, if the parents' religious practice substantially limits medical care of the child or disciplines the child in ways that border on abuse. The actual or potential harm may justify some limitation on the religious practices.
The court may consider the neighborhood the parents live in, especially if the neighborhood poses some danger to the child. Similarly, the court may consider the neighborhood if it offers more playmates or represents continuity to the child.
HOWEVER: The court should not use a comparison of how wealthy a parent is to award custody to the parent with more money. The custody law in North Carolina gives less weight to comparisons of standard of living. More consideration is given to other factors such as the emotional bond between parents.
The court considers a particular school over another when comparing how the educational needs of a child are met. For example, if a child has needs that the school in one parent’s district can address, that would be one of many factors considered in awarding custody.
HOWEVER: As with other factors, the better school may not be as important as other factors when everything is considered.
To find other Legal Aid of North Carolina materials, including any materials mentioned in this document, go to lawhelpNC.org. If you need legal help please go to legalaidnc.org/.