High Conflict Child Custody Cases
The best way to determine child custody in North Carolina or any state for that matter is by a voluntary agreement between the parents. An agreement between the parents allows the parents to structure the custody in a manner that best meets their and the children’s needs and desires.
If left to the courts you loss control over the particulars of the agreement and leave it up to the judge to craft the details of the child custody order. There are no winners in high conflict child custody cases. Neither parent nor the children benefit from a long court battle. Court battles over custody are expensive and emotionally draining on the parents and can do permanent damage to the children.
Who will raise the children of a marriage is often the most emotionally charged aspect of a separation. It is made even more difficult for the parties to come to an agreement when one of the parties is contemplating leaving the state. If the parties are willing to work together technology has made it easier to maintain a long distance relationship with a child. Innovations like Skype allow parents to see and talk to their child everyday even from miles away. In most cases, couples who are able to put aside their differences can craft creative compromises on child custody and visitation matters. If the parents agree to the terms of child custody and visitation arrangements the details can be incorporated into the agreement. The agreement does not have to be approved by the judge if both parents voluntarily agree to the terms. A separation agreement can also provide spouses with the flexibility to affect their own modifications of the custody arrangements, or any other portions of the separation agreement for that matter, through future written amendments.
If Your Custody Case is Headed for Court Consider the Benefits of a Parenting Coordinator
The idea of using parenting coordinators originated in Colorado when a group of divorce lawyers, mediators and mental health specialists began a program to help families headed for high conflict child custody litigation. Since then the concept has spread to over 17 states which either have statutes specifying the procedures for appointing coordinators or programs which allow the courts to appoint coordinators with the authority to recommend to the court binding post-custodial decisions.
North Carolina has such a statute. In North Carolina a parenting coordinator is a professional who can be appointed by the domestic court in high conflict custody disputes to help the parents resolve the issues involving the co-parenting and custody of their children.
Either parent can request the judge to appoint a parenting coordinator or the judge can do so on his/her own accord without a request from the parents if the judge determines the case is generating excessive litigation, anger and distrust between the parties, verbal or physical aggression between the parties, or if the parties have difficulty communicating about their minor children.
The judge will specify the authority of the parenting coordinator in a court order appointing the coordinator. The order can authorize the parenting coordinator, for example, to: identify disputed issues between the parents; reduce misunderstandings; clarify priorities; explore possibilities for compromise; develop methods of collaboration in parenting; and assist parents in complying with court orders establishing custody, visitation, or guardianship. The judge may also authorize the parenting coordinator to facilitate the resolution of issues that are not specifically in the court order.
Some parents feel a parenting coordinator takes away their parental rights because the coordinator has the authority to make decisions about the custody arrangements if the parties cannot reach a mutually agreeable custody arrangement. However if the parties are at an impasse a coordinator can be helpful in reaching a custody arrangement. Parental coordinators are expensive but may be less expensive than extensive litigation. Parental coordinators will cost the parties approximately $150.00 to $250.00 an hour.
If Your Child Custody Dispute Goes to Trial
Litigation should be the last resort and only considered after all other efforts have failed in establishing a custody arrangement. Litigation may be your only option where the other party is not agreeable to reasonable custody arrangements or you are concerned for the child’s safety. For example, situations where there is a serious concern of parental neglect, physical abuse or sexual abuse, or where one parent’s mental health challenges may prevent him/her from being able to care for a child.
A parent’s right to custody of their child is a very strong right and the courts will not take away that right without evidence that a parent is unfit to raise his/her child and even if incapable of raising the child the court will rarely deny a noncustodial parent all visitation with his/her child.
The primary consideration in a child custody hearing and in actions to modify a child custody order is the best interests of the child. As long as the judge follows this principle he or she has wide discretion in determining a custody order. The judge can consider the child’s developmental needs and the parent’s caretaking abilities and the home environment the parent can provide and may take the child’s preference into account but is not required to so.
If a custody case goes to court, the court will carefully examine you and your spouse’s conduct in the past and, based on history, the court will predict how you will behave in the future. Your child may or may not participate in the proceeding. The judge will determine if the child is too young to understand what he or she may be asked or the child’s ability to distinguish between right and wrong. Judges do not like children getting involved in their parent’s custody battle and frequently discourage the parties to bring the children to Court. In Wake County, children are not allowed in the courtroom during the trial unless they have been called to testify. Judges prefer to interview the child in camera which is in the Judge’s chambers without the parties or their attorneys present. However, in order for the Judge to question the child in chambers, both parties must consent. If the parties do not both consent, the Judge cannot hear the testimony in chambers and must hear the child in open court if one of the parties insists on calling the child to testify.
The judge has the power to award joint legal custody or sole legal custody. Joint legal custody is when the parties equally share in the decisions making process for the child. The parties discuss and agree upon issues regarding the child’s schooling, health and medical decisions, and religion. If one party is awarded sole legal custody, that party does not need to discuss legal decisions with the other parent. He/she makes all of the legal decisions alone. Physical custody can be awarded equally (50/50) or primarily with one parent and secondarily with the other on a schedule set out by the Judge.
If the judge believes it is necessary for the protection of the child, the custody order may specify that the visitation with the child be supervised either by another family member, a designated third party or through a supervised visitation facility like Time Together in Wake County, North Carolina.