Child Custody FAQs

How can I get custody of my children?

Custody, as with all the issues you may have as a result of your separation, is dependent on many factors. One of the factors that allows the Court to determine the custody or parenting schedule of children is the children’s established routines. The initial custody determination is based on what is in the children’s “best interests”.

I am a father. Does that mean I will not get custody of my children?

There is no presumption in North Carolina that a mother or father is a better parent for the children. Many years ago, there was a maternal preference referred to as the “tender years doctrine”. This doctrine has been abolished in North Carolina. Once it is determined that both parties are “fit” and “proper” persons to be awarded custody of their children, it then must be determined what is in the children’s “best interests”—a standard often referred to as the “polar star” of custody cases.

Can my children testify?

Typically, children will not testify in a Courtroom. However, this, along with most other sensitive topics in Family Law, is always in the Court’s discretion. If it is necessary to hear from a child, the Court will likely do so “in camera”, which means outside the presence of the children’s parents and in the Court’s chambers.

Will I be able to recover attorney fees if I make a claim for child custody?

It depends on the circumstances of your case. Our North Carolina General Statutes provide as follows:§ 50-13.6. Counsel fees in actions for custody and support of minor children. “In an action or proceeding for the custody or support, or both, of a minor child, including a motion in the cause for the modification or revocation of an existing order for custody or support, or both, the court may in its discretion order payment of reasonable attorney’s fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit. Before ordering payment of a fee in a support action, the court must find as a fact that the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action or proceeding; provided however, should the court find as a fact that the supporting party has initiated a frivolous action or proceeding the court may order payment of reasonable attorney’s fees to an interested party as deemed appropriate under the circumstances.”

How do I modify my current child custody order?

Generally speaking, in order to modify a custody or child support order, unless you and the other parent agree to the modified terms, you will need to show the Court that there has been a substantial change of circumstances materially affecting the best interests and welfare of your children. Our North Carolina General Statutes provide, in part, as follows:”…An order of a court of this State for support of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested…”

What is the definition of joint custody?

There is no set definition for joint custody according to the North Carolina Statutes. As far as joint legal custody is concerned, it is typically thought of as both parties having an equal say in the important decisions involving your child(ren), such as his or her education, religion and medical decisions. However, it can be defined differently depending on what you and your child(ren)’s other parent agree to or what the judge orders in your custody order. As far as joint physical custody goes, it is typically thought of as both parents having equal, or close to equal, parenting time with the child(ren). However, it can again be defined differently in every case depending on what you either agree to or what the judge orders.

What is the definition of sole custody?

There is no one definition for sole custody under North Carolina law. However, sole legal custody typically means that one party makes all of the important legal decisions for the child(ren), such as his or her medical, educational and/or religious decisions. Sole physical custody typically means that one party has physical custody of the child(ren) while the other party merely has visitation.

Do I have to go to custody mediation?

It depends. If you file a lawsuit in Mecklenburg County for child custody, the parties will typically have to attend mediation at the courthouse as well as an orientation session and parent education classes. These are all attended without your attorneys in an effort to settle your case without the need for litigation. There are circumstances, however, where mediation will not be required, such as if one party lives more than 90 miles from the courthouse or if there are allegations of domestic violence in your case.

What is the difference between legal custody and physical custody?

In North Carolina, there are two components of custody: legal and physical. The legal aspect of custody focuses on which parent, solely or jointly, will make the major decisions in a child’s life as it relates to issues involving medical, religious and education choices. Physical custody refers to the actual living arrangements for the child. The primary factor for determining both legal and physical custody is what is in the child’s best interest. At Sodoma Law, our experienced attorneys can help clients navigate these complex and pertinent issues and assist clients in developing comprehensive parenting plans that incorporate both the legal and physical aspects of child custody.

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When I opened the doors to Sodoma Law in 2008, it was with the intention of building a different kind of firm. When I started to put together the team, I focused on creating a culture unlike any other I had encountered: a “firm family” that showed commitment to our clients, to our team and to our community. Over time, this concept has become known as “The Sodoma Way.”
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