Child Custody and Child Support

Child Custody

Child custody can be resolved by written agreement or set out in the terms of a court order if the parties are unable to agree. In North Carolina, if there is no agreement or court order controlling written document, either party could change the existing custodial arrangement at any time simply by moving a child's residence, denying the other access tot he child or taking some other action concerning the child's home, education or the like. That advice and assistance of attorneys such as Ronnie Mitchell is extremely important in matters concerning custody.

Jurisdiction

North Carolina Courts may exercise jurisdiction to resolve the issue of custody under the terms of the Uniform Child Custody Jurisdcition Act which has been enacted in North Carolina. While the provisons of this law are very complex, simply stated, North Carolina Courts have jurisdicition to enter a custody order if North Carolina is the "home state" of the child, that is, if the child lived in North Carolina for at least 6 months prior to the time that the complaint of motion for a child custody determination is filed, or if there is an emergency requiring the entry of an order, or where there is information concerning the present or future care, and interpersonal relationships of the child in this State and there is a substantial connecton between the child and at least one fo the parents with this State.

Form of the Custody Arrangement

In an agreement or court order, the form of the custody arrangement can vary greatly depending on the circumstances. The judges in the North Carolina Courts and the separating or divorcing parents are required by law in determining the terms of the custody arrangement to consider the totality of the circumstances in arriving at a custody arrangement that is in the best interests of the child or children.

Determining Child Custody

The Courts and the parties must consider the suitability or fitness of each parent to have custody of the child or children, the mental and physical well-being of the child and each parent, the relationship of the parent or parents with the child and its nature, duration and extent, any prior good or bad acts or habits of the parties, and the existence or nonexistence of any other familial or other relationships affecting the child. They must also consider the ability of each parent to provide a healthy and stable environment for the child or children as well as the past, present and future care, educational opportunities and experiences of the parents and the child along with interpersonal relationships and exchanges. In other words, as an old opinion of the North Carolina Supreme Court put it, "the best interest of the child must be the polar star by which the court" and the parents are guided in deciding the custody arrangements.

Child's Preference

Contrary to some commonly held beliefs, a child's preference is not controlling and need not necessarily be considered by a judge in determining custody arrangements. Also, although contrary to "popular legend," North Carolina judges very rarely deny visitation or secondary custody rights to a parent. Only in cases where one parent proves the child may be in some danger from the other parent, the judge might provide that visitation will be supervised by either a relative or an unrelated third party such as a social worker in a protected setting. Only in the extremely dangerous circumstance would the court completely deny visitation or contact with the child, although a parent can by his or her own conduct and omissions concerning a child create circumstances in which the court ultimately terminates his or her parental rights.

Sole, Joint, Split or Shared Custody Child custody, therefore, can take many forms. It may be sole custody, joint custody, shared custody, split custody or any hybrid form that benefits the child. Often, even, now, one parent (frequently the mother) has been the primary care-giver throughout the child's life, and the parties agree or the court orders that this care-giver should continue to have the child most of the time. Yet, this arrangement may still be referred to as "joint custody" with primary and secondary custody divisions in order to establish the rights and obligations of the parties to have time with and to have a relationship with the child. Essentially, though, these terms ordinarily are intended to denote a parent's rights to make decisions regarding the child. "Sole custody" ordinarily implies that the parent having the superior right to physical custody has most or all of the decision-making authority. "Joint custody," on the other hand, ordinarily connotes that each parent will have some decision-making authority or rights.

Child Support

Like other issues in regard to separation and divorce, child support may also be settled by written agreement or it may be determined in a court order. North Carolina, like other states, has adopted guidelines which establish rates of child support according to certain variable criteria related to family income and number of children.

The Child Support Guidelines.

The North Carolina, the Child Support Guidelines are based on the combined gross incomes of the father and mother of the child. The current North Carolina Guidelines list child support amounts for families of up to $150,000 annual combined gross income, according to the number of children of the marriage. Adjustments are then calculated for ordinary additional costs such as work-related daycare expenses and health insurance premiums. Before the adoption of the guidelines in North Carolina, other fixed expenses that were used for the calculation of child support -- such as rent or mortgage, automobile payments, and utilities -- are not expressly used in making the child support calculation currently in North Carolina. Instead, such expenses are implicitly considered in the North Carolina Child Support Guidelines.

Deviation from the Guidelines

A judge in North Carolina is also permitted to deviate, upward or downward, from the guideline amount in cases where the guideline number is less, or more, than the child actually needs. Deviation is completely within a judge's discretion in North Carolina. Deviating from the guidelines is neither mandatory nor automatic. Judges have deviated from the guidelines most often where the circumstances involved extraordinary health care costs, special education fees and transportation expenses to facilitate long-distance visitation. In a family with combined gross income in excess of $150,000, the custodial parent is usually the parent who requests an upward deviation from the guidelines. Regardless of family income, the non-custodial parent, referred to as the "obligor," often is the party requesting a downward deviation.

Contact us if you would like to have a copy of the North Carolina Child Support Guidelines. We can be reached at 910- 678-8900.

Length or Duration of Child Support Obligations

Child support obligations exist under North Carolina law during a child's minority (that is, until age 18), but may extend up to age 20 if the child has not graduated from high school prior to reaching that age. If a child is becomes emancipated (for example, by marriage) prior to age 18, child support would end at that earlier age under our current law. Additionally, child support may extend beyond the age of majority under the terms of a valid and enforceable contract, in which the post-majority obligation is set out, such as in provisions of r support during college. Another exception to the rule that child support ends when the child is no longer a minor, occurs where a child who, post-minority, remains mentally or physically incapable of self-support, such as a child who needs long-term care. In this situation, the child support obligation under North Carolina law exists for as long as the child is incapable of self-support.

Enforcement of Child Support

Child support may be enforced by the Court in a number of ways, including, wage withholding, garnishment, incarceration for contempt of court as well as other remedies. Where child support is agreed to in a separation agreement, or ordered by the court, and then not paid, there are a number of remedies to secure enforcement of the agreement or court order. If the child support is set up in a contractual agreement, the basic remedy is suit for breach of the contract, which would include a claim for the arrears. If child support is payable under a court order, whether originally established as a court order or entered as a result of a suit for breach of contract, the order is enforceable through the contempt powers of the court and penalties, including jail for non-compliance may be imposed.

Child custody and support matters are very complex. The general information provided, here, is designed to help you understand, generally, the rights and obligations generally concerning these matters, but should not be used without obtaining the specific advice of competent and capable attorneys such as that provided by the members of Mitchell, Brewer, Richardson.

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