Maginnis Howard no longer practices family law. This blog is for informational purposes only.
Child custody actions can be initiated by filing a civil action under N.C. Gen. Stat. §§50-13.1 and 50-13.5. A person can also file a motion during a divorce action. Custody orders are never considered final so the court always has jurisdiction to modify a custody order with a showing of a substantial change in circumstances. The court will generally award exclusive custody of a child to whomever is in the best interests of the child, whether it’s an individual, agency, organization, or institution.
The court can grant joint custody if it is in the best interests of the child. Generally, the judge will award primary custody to one party and temporary custody (or visitation) to the other. Visitation is essentially a “lesser degree of custody.” When custody is awarded to one parent, the other parent has a natural and legal right to visitation with the child. Exclusive custody (i.e. denying the noncustodial parent visitation rights) will be not be awarded unless that parent has forfeited their right to custody by misconduct or if visitation rights would be against the best interest of the child.
Denial of visitation rights cannot be used to punish a parent. Instead, it can only be used to protect the welfare of the child. The courts are hesitant to deny visitation rights to a divorced or separated parent. The court should ensure that the noncustodial parent’s visitation rights are guarded by ordering the time, place, and manner for the parent to visit with the child. A parent should have access to the child unless:
1) The parent has forfeited the privilege by their own conduct; or
2) Visitation would negatively affect the welfare of the child.
In Wake County, all child custody disputes are subject to mandatory mediation.
