Filing for Child Custody in North Carolina

by Teo Spengler

The time period for bringing a child custody action in North Carolina lasts from a child's birth through their 18th birthday. Custody is generally litigated as part of a divorce, but it can be filed as an independent lawsuit. Filing for divorce with children in North Carolina -- like bringing an independent action -- requires a thorough comprehension of the state's legal process. But if a divorce action is underway, filing for custody does not require a separate lawsuit.

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Negotiating Private Custody Agreement

Child custody battles can be costly and emotional. In North Carolina, divorcing parents do not need to leave the custody decision to the court and most of them do not. The majority of child custody orders in North Carolina are the result of negotiation and agreement between the parties to the divorce. As long as both parents agree on a child custody order, the court will enter the agreement as part of the judgment of divorce.

Divorce Court Custody Determination

North Carolina General Statutes 50-13.1 through 50-13.9, as well as the Uniform Child Custody Jurisdiction Act, sets forth the rules for a judicial determination of child custody. Courts hear most custody issues in the context of a divorce action. Once a petition for divorce with children is filed in the District Court Division of the North Carolina General Court of Justice, the court determines whether the parties agree on custody and visitation; if not, the court orders a hearing.

Separate Complaint

Any interested party can seek custody of a minor child, including parents, grandparents, extended relatives, or an agency or institution. If the custody request is not brought in the context of another action, such as divorce, the party seeking custody files a separate complaint in the District Court Division of the North Carolina General Court of Justice. Those interested in proceeding in this manner may want to obtain legal assistance in order to comply with all relevant North Carolina judicial procedures.

Child's Interest Paramount

In North Carolina, the welfare of the child is the controlling principle in custody determinations. Courts must award custody to the person who will "best promote the interest and welfare of the child." This standard provides the court with much discretion. The judge can consider and weigh many different factors, such as the child's age and developmental needs, child's preference, home environment and care-taking history of each applicant for custody, and anything else that might affect the child's welfare.

Reopening Custody

A child custody order can be altered in North Carolina, whether it was negotiated between the parties or resulted from court adjudication. Either party can move the court to reopen the issue as long as they make a showing of materially changed circumstances. A substantial increase or decrease in the income of a spouse can constitute a changed circumstance under North Carolina law, as can the criminal conviction of one parent or abuse of the child.