How do you get primary custody of a child

Child Custody | North Carolina Judicial Branch

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What is child custody and visitation?

Child custody includes the right to make major life decisions about a child and the right to have the child in your care. Visitation is a secondary form of custody, which includes the right to visit with a child at times set forth in a court order, sometimes under specific conditions. “Visitation” is frequently used to refer to a person’s parenting time when it is relatively limited.

What is the difference between legal and physical custody?

Legal custody is the right to make major decisions about the child. Physical custody means the right to have the child in your physical care, either all the time or part of the time.  Both legal and physical custody can be either shared by the parents or held solely by one parent.

What do sole custody and joint custody mean?

A parent who has sole legal custody can make major decisions about the child’s life without consulting the other parent. If parents have joint legal custody, then they must consult one another and jointly make major decisions, such as where the child will attend school or whether the child will have a major medical procedure. If the parents cannot agree, a court may have to make the decision.

Sole physical custody means that the child lives with one parent only, though the child may visit with the other parent. Joint physical custody means that the child’s time is split between the parents. There are many possibilities for joint physical custody. One parent may have primary physical custody, meaning the child lives with that parent most of the time, while the other parent has secondary physical custody, for example, every other weekend, or regularly scheduled dinner visits. Alternatively, there may be an equal split in which the child alternates between the parents on a regular basis.

Am I required to get a custody order?

Parents who are no longer together are not required to get a custody order, but may choose to do so in case they do not agree about the child’s care. Non-parents do not need a custody order to provide temporary care for a child as long as the parents agree that the child will live with or be cared for by the non-parent. However, schools, medical providers or other third parties may require a custody order before allowing a non-parent to make decisions for a child. 

What happens if there is no custody order?

Both legal parents have equal rights to the child if there is no custody order. “Legal parents” are people officially recognized as parents on the child’s birth certificate, a court order such as a child support or adoption order, or an affidavit of parentage. Without a custody order, the rights of non-parents are much more limited, and the parents generally have the right to custody of the child.

What happens when the child turns 18?

At age 18, your child is legally an adult, and the courts no longer have the authority to order custody or visitation.

Does the law prefer one parent over the other?

No. Either parent can be awarded custody of a child of any age, depending on the family’s specific circumstances.

Does failing to pay child support affect a parent’s custody rights?

A parent’s custody rights do not depend on payment of child support, but on the type of relationship with the parent that is in the child’s best interests. A court may consider refusal to pay child support in its analysis of the parent’s ability to act in the child’s best interests.

What is an emergency custody order?

An emergency custody order, sometimes referred to as an “ex parte order,” is an immediate, short-term custody order that a judge can grant under limited emergency circumstances, without hearing from the other party. The grounds for granting emergency custody include situations in which a child is at a substantial risk of bodily injury, sexual abuse, or removal from North Carolina for the purpose of avoiding the authority of the North Carolina courts. Law enforcement can assist in recovering a child with an emergency custody order. If an emergency custody order is granted, a hearing must be scheduled so that both parties have the opportunity to be heard. You should consider hiring an attorney if you need to file for emergency custody, because the process is complex.

Filing for Custody

Who can file for child custody or visitation?

Any parent can file for custody, whether the parents are separated, divorced or never married. Third parties, such as grandparents, relatives, or others who have cared for the child, can file for custody or visitation under some circumstances. To obtain custody, non-parents must prove that the parents are either unfit to care for the child or have not acted in accordance with their rights as parents, for instance, by abandoning the child to be raised by a non-parent. Grandparents may also be awarded visitation in some circumstances when there is a custody case between the parents. Non-relatives requesting custody must prove that they have a substantial relationship with the child. 

How do I file for custody?

To ask a court for a child custody order, you must file a complaint. Your lawyer can file the complaint for you, or if you do not have a lawyer, you can file a complaint yourself.

What resources can help me file for custody without a lawyer?

You can find information online about the process, child custody paperwork, and clinics conducted by Legal Aid of North Carolina.

Where should I file my custody case?

Custody cases must be filed in the child’s “home state,” which is the state where the child has lived for the six months before the case is filed. If you had a previous custody case about the same child in a different state, you generally must return to that state to change your custody order as long as one of the parties still lives there.

Within North Carolina, you may file a custody case in the county in which the child resides or is physically present or in a county where the parent resides.

What happens when I file for custody?

After you file your case, you must ensure that the summons and complaint are served on the other parent, generally either by the sheriff or through certified mail. A judge can only make decisions in your case after the other parent has been served with the summons and complaint.

Generally, before a judge can hear your case, it will be sent to the Custody Mediation Program. See the Custody Mediation Help Topic for more details about custody mediation. If you and the other party are unable to agree on a custody and visitation plan in mediation, a judge can hear your case to make a decision for you. In most cases, a hearing will be scheduled only if one of the parties requests it.

I went to court for custody in the past, but the situation has changed. Can I file a new case?

If a judge signed a custody order in your earlier case, you will need to file to modify that order rather than filing a new case. In general, your Motion to Modify should be filed in the court that made the original decision. In some situations, if your previous case was dismissed, you can file a new custody case. See below for more information on modification.

Legal Representation

Do I need an attorney for my child custody case?

You are not required to hire an attorney, but child custody cases are often factually complicated and require the presentation of witnesses and documents. If you represent yourself in court, you will be held to the same rules of evidence and procedure as a licensed attorney. Court officials, such as judges and clerks of court, cannot provide you with legal advice about your rights and obligations or the likely outcome of your case based on your family’s circumstances. See the Find an Attorney Help Topic for more information about finding an attorney to represent you.

Can I get a court-appointed attorney for my custody case?

No. The court does not appoint attorneys to represent parties in child custody cases.

Court Process

Someone has filed a case for custody or visitation against me. What do I do?

If you are able to do so, you should discuss the case with an attorney as soon as possible. You must respond to the lawsuit by filing an Answer within 30 days after you are served with the summons and complaint. You should also attend all mediation and court dates. You will not be arrested for failing to appear in court for your custody case. However, if you do not attend mediation or hearings, you will lose your opportunity to tell the judge your side of the story and request custody or visitation rights.

What is custody mediation?

Custody mediation is a conversation between the parents assisted by a professional mediator. The mediator works with the parents, without attorneys in the room, to come to an agreement about child custody, if possible. You can learn more about mediation in the Custody Mediation Help Topic.

Who will decide my custody case?

If you and the other parent are not able to agree on a custody order in mediation, a judge will decide your case after a trial in which you both have the opportunity to testify and call witnesses. If your judicial district has a family court program, you may have one family court judge assigned to decide all matters in your case. If not, any district court judge can hear your case.

What will the judge consider in deciding my case?

Judges decide child custody based on “the best interests of the child.” This decision can include many factors, such as the parents’ living arrangements, each parent’s ability to care for the child, the child’s relationship with each parent, and any other factors affecting the welfare of the child. While fairness to the parents is important, this is secondary to the child’s welfare. A party’s shortcomings as a spouse or relationship partner will generally only carry substantial weight if they also impact the party’s parenting abilities. An attorney can advise you on the most relevant factors in your specific case.

Can my child talk to the judge about what he or she wants?

There are two situations in which a parent may bring a child to testify in court, and the requirements are slightly different. There is no age limit preventing parents from bringing young children to testify, but this can affect the judge’s view of the parent’s judgment, depending on the age of the child and other circumstances.

• Children can testify as witnesses to specific incidents. Before taking testimony from a child, the judge must determine that the child understands the importance of telling the truth.
• Children can speak to the judge about their preferences. In this case, the judge must determine that the child understands the importance of telling the truth and that the child has reached the “age of discretion,” meaning that he or she has sufficient maturity and good judgment. Judges often consider teenagers’ preferences about where they want to live, but are not required to order what the teenager wants.

Many judges prefer to have children wait outside the courtroom rather than observing the trial. Many judges will speak to children “in chambers,” meaning in a separate room without the parents present, rather than having the child testify in the courtroom.

What is the difference between temporary and permanent custody orders?

Judges may enter either temporary or permanent custody orders. A temporary custody order will be in effect until the judge holds a new trial to make a decision about modifying the temporary order or entering a permanent order. Temporary custody orders are legally binding, but easier to change than permanent orders. If you are unhappy with a temporary custody order, you can schedule your case for a review of the temporary order or for a permanent custody trial. Temporary custody orders can become permanent if neither party requests another hearing for a long period of time. To change a permanent custody order, you must show that there has been a substantial change in circumstances affecting the child since the permanent order was entered.

I am currently in the military. What are my rights?

Specific laws govern the rights of active duty members of the military. If you are unable to attend court due to your active-duty status, you can request that the court case be put “on hold” until you return. You can find more information here. 

Enforcement and Modification

The other parent has violated our custody order. What can I do?

You can file a Motion for Order to Show Cause or Motion for Contempt to ask the judge to hold the other parent in contempt of court for violating the order. If the judge finds that the other parent violated the order, the judge will decide the appropriate penalty. Penalties for contempt of court can include a verbal reprimand, a fine, jail time, or requiring the party in contempt to pay the other party’s attorney’s fees. 

I have a custody order and want to change it. What can I do?

If you have a temporary custody order, you can schedule another hearing in your case without the need to file additional motions, though filing a motion may be helpful in some cases. If you have a permanent custody order, you must file a Motion to Modify. When you file a Motion to Modify, you must allege in your motion and prove in court that there has been a substantial change in circumstances since the original order was entered, and that those changes are affecting the child in a way that requires the old order to be changed to serve the child’s best interests.

I have a custody order from another state but now live in North Carolina. What do I need to do?

Custody orders from other states are valid in North Carolina. In general, even if you and/or the child has moved from another state to North Carolina, a judge in the original state will continue to make decisions in your case as long as one of the parties still lives there. If everyone has left the original state, you can ask the North Carolina courts to take over your case. If you want a North Carolina judge to enforce or change your out-of-state order, you must begin by registering the order in North Carolina. You can find the petition to register a custody order from another state or country here.

Pursuing Primary Custody of Your Child

Custody battles (especially for primary custody) can be one of the most challenging and embittering parts of the divorce. There are so many misconceptions that it can be tricky to get the facts straight. Sometimes those facts can change between states too. That’s why if you are pursuing primary custody of your child it is vital to retain a divorce lawyer specializing in custody.

Few family law issues are as important to a family as child custody concerns. A custody outcome ultimately determines the physical time each parent spends with the child. It also outlines the decision making authority of both parents.

Understanding the legal principles and relevant Nevada law will help you prepare for your child custody battle. In addition to this article, we highly recommend you review your specific situation with a child custody attorney. Every situation can be different. No article can substitute individual legal advice on pursuing primary child custody.

Before you go into a custody battle, take a moment to learn the territory. It doesn’t make much sense storming into a battle field blind folded. Here are some basic child custody terms to understand.

What are the different types of custody?

There are two main types of child custody: legal and physical. Legal custody refers to a parent’s role in making decisions regarding the child’s health, schooling, religion, and general well being. Physical custody refers to where the child physically lives.

Additionally, for both legal and physical custody there are two sub-types: primary and joint custody. Joint custody means that parents share an equal role in decision making while primary means that one parent retains full responsibility. It is possible for parents to different levels of custody depending on the main type.  Parent’s may share joint legal custody of the children while one parent has primary physical custody.

Legal Custody Definition

Legal and physical custody differ in the eyes of the law. Most of the time when people talk about child custody, they are talking about physical custody.

Legal custody is the responsibility to make decisions about the child’s well-being. The parent with legal custody makes decisions such as which school the child should attend, which doctor they should see, and general welfare related decisions.

Physical Custody Definition

Physical custody relates to the amount of time the child spends living with each parent. Nevada law prioritizes joint physical custody, meaning the child lives with both parents on an equal basis. If a parent has 61% or more of visitation time, then that parent has primary custody. The parent without primary custody is the noncustodial parent.

The Differences Between Joint Custody, Primary Custody

Each type of child custody, whether legal or physical, falls into one of categories, primary or joint. Primary means one parent has the authority or control. Joint means both parents share that responsibility. The Nevada legal system prefers both joint physical and joint legal custody.

Sole Custody

There is one more label, sole custody. Sole custody is used in extreme situations. This label means one parent has exclusive parenting rights and responsibilities for the child. The other parent has zero legal custody rights. Physical custody rights may be limited to supervised visitation or at the custodial parent’s consent.

It is important to note that joint, primary and sole custody does not need to apply to both legal custody and physical custody. Parents may choose to share joint legal custody and choose a different method of physical custody. For example, you may see parents with joint legal custody, and mom has primary physical custody. The standard arrangement, and courts preferred arrangement is joint legal custody, and joint physical custody.

When parents cannot come to a custody agreement, the courts make the final decisions. To make a determination the courts will use several factors to determine a child’s best interests.

Why Nevada Judges Prefer Joint Custody

Nevada prefers to put co-parents in control of the process, leaving the court out of it entirely. The reason for this is quite simple. When parents cooperate, they are more likely to follow the agreement which is in the child’s best interests. After all, parents know what is best for them and their children. If parents cannot agree, then the court will make a custody ruling.

In making a custody determination, Nevada relies on factors used to make a finding based on what is best for the child. Today, we no longer see courts arbitrarily granting a mother custody just because she is the mother. Nevada’s best interests standard that ultimately affects every child custody case owes its roots to the 1994 case of Truax v. Truax. The court in the Truax case outlined several tests used to determine what is truly in a child’s best interests.

Factors Judges Account For During Custody Battles

The reasoning of this landmark Nevada family law case was ultimately codified into law under NRS 125C.003 and 125C.0035. These statutes explain the custody factors the Nevada courts use, which include, but are not limited to the following:

• Cooperation and/or conflict level between the parents
• Physical and mental health of both parents
• Developmental and emotional needs of the children
• Strength of both child-parent relationships
• Child’s relationship with their siblings
• Whether the parents have a previous history of domestic abuse
• If the child is of sufficient age and mental capacity, the court takes their wishes into consideration

Judges will use these factors to make their rulings on legal and physical custody. These same factors also help determine a visitation schedule based on the facts and needs of the children. Once custody is established only then will the courts move on to calculating child support.

To better understand how the “best interest” custody factors apply to your case, you may find it helpful to complete our Best Interest Factors Worksheet. Our divorce lawyer specializing in custody cases created this worksheet to help parents understand how the courts use these factors to view everyday situations.

Even if parents agree to joint custody, primary custody or some other arrangement, a judge will still review the agreement to determine it meets the best interests standard based on Nevada custody laws.

Before charging into a custody battle, take a moment to review the definitions, and lingo.  Learn what the court requires to show “best interest” for primary custody. Think if your request is best for your child and their development. If it is then go for it. If it isn’t then talk with your divorce attorney about alternative strategies.

Are you getting ready for a battle to win primary custody of your child? Contact RIGHT Lawyers at (702) 914-0400 today to make sure you are prepared.

How to get child custody and what it takes

Legal advice > Family law > Adoption and guardianship > How to get child custody and what it takes

Getting child custody is a complex procedure that requires a lot of responsibility from the future guardian. Responsibility lies in the very purpose of guardianship - the upbringing, education of children under the age of fourteen, as well as the protection of their rights and interests. A person who wants to become a guardian should remember that desire alone will not be enough for this. In addition to desire, a citizen must draw up and submit an application along with other documents to the appropriate authority.

Content:

• Guardianship and children who need it
• Guardian and requirements for him
• Documents for obtaining guardianship
• How guardianship is arranged in need

  Sometimes when parents are alive, children need guardianship

  Guardianship, first of all, is an opportunity to provide a child who, for certain reasons, is deprived of parental attention, with the family warmth and care he needs. In addition to general goals, guardianship also implies more specific ones: a child under guardianship must fully receive education, upbringing, material support, as well as protection of their own rights and interests.

  Guardianship, adoption and guardianship are similar concepts. They set themselves almost the same goals and objectives, but at the same time they differ significantly. Guardianship can only be established over a child under fourteen years of age. Guardianship is established over children from fourteen to eighteen years of age.

  Adoption, in contrast to the two previous procedures, requires much more time and is quite complicated to process. Among the main differences between guardianship and adoption are:

  • unlike adoption, which is formalized through the courts, guardianship and guardianship authorities are involved in formalizing guardianship
  • upon adoption, biological parents are deprived of all rights and obligations, and upon formalization of guardianship they are obliged to provide him with material support
  • in case of adoption, preference is given couples, and in case of guardianship, a single person can also take the role of guardian
  • in case of guardianship, the name and surname of the child remain unchanged, and in case of adoption, in most cases, the surname changes to the surname of the new parents

  Guardianship can be issued only if the child was deprived of custody of biological parents for the following reasons:

  1. parents died
  2. parents were deprived of their rights in court
  3. the rights of parents were limited by the court
  4. parents cannot guardianship child due to age or state of health

  The legislation of the Russian Federation separately provides for other reasons, the presence of which may be a reason for a child to be placed under guardianship even if his parents are alive:

  • parents are absent for a long time due to imprisonment, business trip or other reasons
  • parents of the child are sick and therefore limited in their parental duties
  • parents refuse to raise their child or protect his rights and interests
  • parents create dangerous conditions, in which the child cannot be brought up

  A person who wishes to obtain guardianship can establish guardianship both over a specific baby and over children, information about which can be obtained from the guardianship authorities.

  Guardianship, in its essence, pursues goals similar to those of such phenomena as adoption and guardianship. Among them are noted: providing the child with care, attention, education, protection.

  Guardian and requirements for him

  To obtain custody of a child, you must meet certain requirements

  Only those citizens who meet certain requirements can become a guardian. This person must be of age and capable, he must not have any addictions and convictions. His personal and moral assessment should characterize him in a positive way. The child must give his or her consent to the guardianship of that person.

  It is not surprising that a citizen who is a guardian is subject to fairly serious obligations stipulated by law. They are reflected in the Civil and Family Codes, as well as in the federal law "On guardianship and guardianship". The following duties of a guardian can be noted:

  1. care for the child in care - providing him with food, clothing, housing
  2. providing the child with proper care in accordance with his age and state of health
  3. taking care of the development of the child under care, both physically and morally
  4. protecting the interests of the child in various bodies and instances
  5. living together with a child who is under sixteen
  6. notifying the guardianship authorities in case of moving to another place of residence
  7. providing the child with the opportunity to contact his relatives, if contact with them is not lost
  8. use of the child's funds that come to his account to meet his needs and interests, as well as providing the necessary reporting information on costs
  9. disposal of property only when it is authorized by the guardianship authorities

  In addition to duties, the guardian has the following rights: and methods of raising a child

• receive certain payments for the maintenance of the child
• if there are valid reasons, apply to the guardianship authority with a request to terminate their powers

A guardian must satisfy the requirements placed on him and be prepared to perform the duties that his future status will impose on him.

Documents for obtaining guardianship

To obtain custody of a child, you need to collect a package of documents

To obtain the status of a guardian, a citizen must apply to the guardianship authority at the place of residence. There he will need to submit an application and other documents and wait for an opinion on whether he is capable of raising and supporting a child in care. The list of required documents includes:

1. identity card
2. certificate from the law enforcement authorities, which contains a conclusion that the applicant has no criminal record
3. certificate from a medical institution confirming the corresponding state of health
4. certificate of employment, which should contain information about the position and average salary of the applicant
5. a document confirming that the applicant has housing
6. a copy of the marriage certificate (if the applicant is legally married)
7. written consent from all cohabitants who will live with the child under guardianship in the future
8. a copy of the document confirming that the applicant has completed the relevant courses
9. CV
10. a copy of the pension certificate (if the applicant is a person of retirement age).

In addition to possessing the necessary qualities in moral and personal terms, the applicant should submit all the necessary documents to the guardianship authorities and wait for a decision.

How guardianship is arranged

Child custody is a big responsibility!

The submitted application is considered by the guardianship authorities within three weeks. At this time, all documents submitted by the applicant are checked. Often, an additional check of the living conditions of the future guardian is carried out. After that, the applicant receives a response.

If it is positive, the prospective guardian will be given a list of children who need guardianship. When a citizen decides in his choice, he will meet with the future ward child, and if both agree to guardianship, then within three days he will be assigned the status of a guardian. After that, you should apply for cash assistance in accordance with the situation.

In case of a negative answer, the citizen will receive back his documents, as well as an explanation of the reasons for the refusal and the possibility of challenging such a decision. The procedure for obtaining guardianship of a disabled child is similar. The essential difference is that after the ward reaches eighteen and is declared incompetent, guardianship is issued without fail.

The procedure for registration of guardianship consists in the submission of documents by the applicant and their further assessment by the guardianship authorities. If everything goes well, the citizen will be able to get custody of the child who needs it.

Features of guardianship in some cases

People over 60 years of age cannot obtain custody of a child

It often happens in life that the need for guardianship arises even when the child's parents are alive. It has nothing to do with the fact that they do not cope with their duties. Objective reasons may be: illness, business trip, work in a remote place.

Most often, the role of guardians in such situations is played by relatives of the parents who agree to the procedure. The child's life continues in the usual way for him, just the guardian becomes his representative in many instances. This practice is most widespread in single-parent families. The procedure for obtaining guardianship for relatives with the consent of the parent is quite fast. The difference between this procedure and the standard one is that the guardian does not receive financial support from the state.

Special attention can be paid to the guardianship procedure, which is carried out by the child's grandparents. If the latter, for certain reasons, does not have living parents, then close relatives will be preferred when choosing a candidate for guardianship. An important condition for an elderly person to be a guardian is his age. According to the law, a citizen over 60 years of age does not have the opportunity to become a guardian.

Guardianship of children from orphanages is most often formalized for the purpose of adopting such a child in the future. The procedure for obtaining guardianship is much faster than adoption, and this allows future parents to take the child to them first by registering custody, and then start formalizing the adoption, which requires a significant amount of time and takes place in court.

Individual cases of obtaining guardianship have a number of differences. Guardianship, which is issued with the consent of the parents, for objective reasons, limited in the ability to provide the child with due attention, is not supported financially by the state.

Citizens over 60 cannot be guardians.

Obtaining custody is a procedure by which an eligible citizen can obtain custody of a child who needs it. To do this, you must submit documents to the guardianship authorities, undergo verification and receive a response. A positive decision enables a person to become a guardian, with all the obligations that follow from this, and a negative decision will be reasoned and can be challenged.

The topic of the consultation is “Child Custody”. A lawyer answers questions about child custody, how to get custody, the rights of children in a civil marriage of parents:

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Guardianship and guardianship of minors: grounds, order

88406 Author: Vitaly Plotnikov

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