When you and your spouse decided to have children, you probably envisioned a life of raising those children together: a united front, loving, inspiring, and disciplining those children. Divorce was never part of that vision, and the thought that you might need to be the only one who could make decisions regarding your children never even crossed your mind. Yet, today, you find yourself thinking exactly that. The question is: Can you get sole legal custody in North Carolina? While the short answer is yes, there is a longer, more complex answer to be considered before you begin filing paperwork. A child custody attorney with King Law Offices may be able to assist you with understanding your rights as a parent, discussing what kind of evidence can bolster your claim for sole custody, and reviewing the North Carolina child custody process. Call (888) 748-KING to book your consultation in one of our four local offices.
What Is Sole Legal Custody?
Sole legal custody is one child custody arrangement that parents may have in North Carolina. Child custody is broken into separate components that must be decided: physical and legal, and joint or sole.
Joint or Sole Custody
Child custody can be either sole or joint. Joint custody indicates that both parents share custody relatively equally. Sole custody means that one parent alone has custody of the child and the other parent has visitation rights or no custody rights, depending on the circumstances. Parents can have both joint and sole custody, depending on how physical and legal custody are awarded.
Physical and Legal Custody
Custody itself is divided into physical and legal custody. Physical custody regards who the child resides with or who has physical possession of the child at a given time. Legal custody is the right to make major decisions about the child’s life. Physical and legal custody are separate because parents may be given joint physical custody while one parent is given sole legal custody, or one parent may be given sole physical custody while both parents are given joint legal custody. Other options include one parent receiving sole physical and legal custody, or both parents sharing joint physical and legal custody.
Sole legal custody does not apply to the minor’s day-to-day decisions of the child’s life, such as what they will have for meals or what clothes they wear. This custody applies to significant decisions such as whether the child will undergo a major medical procedure, where the child will attend school, or what religion the child will practice. A parent with sole legal custody does not have to consult with the child’s other parent regarding these decisions. In contrast, parents with joint legal custody do have to consult with each other and may have to ask for a judge’s assistance if they cannot agree.
Sole Legal Custody Vs. Termination of Parental Rights
Parents must recognize that sole legal custody is not the same as termination of parental rights. With termination of parental rights, the parent no longer has any rights to physical or legal custody of the child and cannot go to court to ask for these rights. Termination of parental rights is governed by N.C.G.S. § 7B‑1111 and generally only occurs under the specific instances provided by the statute.
Sole legal custody means that one parent has the authority to make significant decisions, but it does not take away any other parental rights from the other parent. Additionally, either parent can return to court to request a change in legal custody if the circumstances change.
North Carolina’s Default Custody Order
Some states have a presumption of joint custody, often split 50/50 or as close to it as possible, from which they deviate to grant different arrangements when needed, based on evidence provided by the parents. North Carolina does not have such default arrangements. Instead, the state uses the best interest of the child standard to determine what is best for the child. The state does not favor either parent, and courts will award custody based on what they believe to be best for the child or children involved.
However, it is also important to note that the court does not have to make custody determinations in every case. If the parents can agree on their own, they can have the court approve it as a court order and avoid a trial. If the parents disagree on their own, North Carolina requires mediation before proceeding to a court hearing. If the parents can agree during mediation, the court will approve the agreement. If the parents do not agree during mediation, the parents will then attend a trial and present their evidence for the judge to evaluate and make a decision for them.
Starting the Sole Legal Custody Process
A parent cannot simply decide that they will make legal decisions on their own. If a parent believes they need sole legal custody, they must ask the court to grant it to them unless the other parent agrees. If the parents agree, they can write up their agreement and submit it to the court for approval. This will result in a new court order reflecting their agreement. If they disagree, then the parent who wants to change custody will need to start the custody process.
File the Custody Complaint
The first step in getting sole legal custody is filing the custody complaint. The North Carolina Courts provide a complaint form or petition. In this complaint, the parent outlines the reasons they are seeking this custody arrangement and provides essential information about the children, the parents, and any other relevant parties. While there is no legal requirement to hire an attorney and the forms can be filled out by the parent, it is generally recommended to seek legal advice to ensure the forms are correctly filled out, filed, and served as the Clerk of Court, Custody Mediator and others cannot answer questions or tell parents how to complete the forms.
Serve the Summons and Complaint
Once the complaint is filed, the court issues a summons. The parent must then serve the summons and the complaint on the other parent. The parent can serve the documents through the local sheriff, certified mail, or other approved method. Proper service ensures that the other parent is aware of the custody case and guarantees their right to have input into the custody arrangement.
Response to the Complaint
The other parent has a specific timeframe to respond, or answer, the complaint. Typically, this timeframe is 30 days from the official date of service. This allows the other parent time to address the claims made in the complaint and present their own preferences and concerns regarding the existing custody arrangement or the potential new custody arrangement. If the other parent does not answer the complaint, the parent who filed the complaint can file a motion for a default judgment and the court may give that parent sole legal custody as requested, if the court believes that is in the child’s best interest. The other parent will be unable to participate in this hearing or have any input because they did not file a response.
Attend Mediation
If the other parent files a timely response, the court will then order the parents to attend mediation. The North Carolina Judicial Branch mandates custody mediation for all parties making a claim for custody of a child. Mediation provides a neutral environment where the parents can openly discuss their concerns and work toward a mutually beneficial decision for the children.
Mediation can be waived in some cases if the parent files a motion to waive mediation. The judge will decide whether to waive it, but there are limited reasons for which the judge is likely to waive mediation, such as living more than 50 miles from the court or domestic violence.
Drafting an Agreement in Mediation
If the parents agree on sole legal custody during mediation, they can draft an agreement to submit to the court for approval. However, this agreement should address more than just the legal custody decision. The agreement should also include key information such as who will have physical custody and how it will be divided if it is joint, visitation, holidays, and special occasions. Parents should also make sure they are considering the child’s best interests when drafting these agreements.
Preparing for Court
If the parents cannot agree during mediation, they will need to go to court and ask the judge for a decision. Parents will have a hearing date scheduled, for which they should take time to prepare. Preparation for this hearing should include gathering evidence supporting their claim for sole legal custody. This evidence may consist of medical records, school reports, and testimonies from teachers, doctors, child psychologists, and other professionals who can explain why this custody arrangement is in the child’s best interests.
Attend the Court Hearing
When the hearing date arrives, both parties are allowed to present their evidence and explain why their custody request should be granted. The judge may ask one or both parties questions to clarify points or better understand the situation. Both parents may be represented by attorneys if they wish. If the other parent has hired an attorney, it is strongly recommended that the parent hire one to ensure both sides are fairly represented and neither party has an advantage over the other because of legal representation. A child custody attorney at King Law Offices may be able to represent you during your sole legal custody hearing.
The Judge’s Decision
After the hearing, the parents wait for the judge’s decision. The judge’s decision will be based on what they determine to be in the best interest of the child. This will consider all the factors and evidence presented during the hearing. Decisions can be made within a few minutes of the hearing or take a few days or weeks. In the meantime, the existing custody arrangement will remain in place.
Special Considerations in Sole Legal Custody Cases
North Carolina courts use the best interest of the child standard to determine child custody, but they also prefer to keep the child’s relationships with both parents intact and strong when possible. This means that getting sole legal or sole physical custody can be difficult if there is not a clear and convincing reason behind it. In some cases, a lack of cooperation from the other parent may be enough.
Some special considerations may boost the chances of a parent getting sole legal custody. These considerations include:
- A history of domestic violence: If the other parent has a history of being abusive toward the parent or the child, shared legal custody may allow them to continue being abusive by refusing to agree on major decisions. Domestic violence in previous relationships may or may not impact a decision to grant sole legal custody in the current case.
- Age of discretion and child’s preference: The age of discretion, generally around age twelve, is the age at which North Carolina courts may consider the child’s preference. However, this is not a firm age. The age of discretion is when a child is deemed old enough and mature enough to understand the circumstances and the consequences of their decisions and actions.
- The other parent’s ability to provide care: The court will look at each parent’s ability to provide care for the child. This includes factors such as home stability, financial stability, availability, and overall well-being. The court may look at child support histories and consider whether a parent has struggled to be consistent with a visitation schedule, though these are often considered more heavily in relation to physical custody rather than legal.
- Substance abuse: Current and previous substance abuse issues can significantly impact physical custody. They can also affect legal custody, and in some cases, may result in one parent being given sole legal custody if the court deems the substance-abusing parent to be unreliable and/or unavailable when major decisions need to be made.
Tips For Strengthening Your Case
When a parent is seeking sole legal custody, they will need a strong case to persuade a court that the other parent should not have a say in major life decisions for their child. The more factors a parent has that indicate they have their child’s best interest at heart, the better their chances of convincing a judge. There are several things a parent can do to support their claim.
Seek Legal Advice
While there is no legal requirement to hire or consult with an attorney regarding custody matters, parents may be able to strengthen their case by doing so. An attorney can assist by helping the parent understand the relevant state laws, explaining what kind of evidence will be most beneficial to their case, and recommending various experts and other professionals that may be able to help. This can be particularly important if the other parent has an attorney. An attorney can also assist by engaging with the other parent’s attorney. This can ensure that a parent does not feel intimidated or overwhelmed or feel manipulated by the other parent’s attorney.
Demonstrate Stability and Consistency
Regardless of the kind of custody a parent is asking for, stability and consistency will be key factors. While parents often think of things like a stable home environment, creating routines around homework and chores, and getting the kids to school or bed on time, it goes beyond that. Parents should also demonstrate stability and consistency in other parts of their life. When seeking sole legal custody or any other kind of custody, parents should not change jobs, start or end significant relationships, or make other significant life decisions unless it is absolutely necessary.
Exhibit Positive Parenting Behaviors
A common mistake that many parents make when fighting for custody is thinking that they must show the other parent in a negative light in order to get the custody they want. While it is important to highlight any negative behaviors from the other parent that may harm or impact the child, it is equally or even more important to exhibit positive, responsible parenting on their own behalf. This includes involvement in the child’s education and extracurricular activities such as attending parent-teacher conferences, helping with homework, and encouraging hobbies or sports.
Cooperate With the Other Parent
Parents who are requesting sole legal custody often do so because they struggle to agree with the other parent on major life decisions regarding the child. In these cases, it may seem that highlighting these disagreements and how difficult it is to co-parent with them would be the way to win custody, but it can do more harm than good. Instead, focus on cooperating with the other parent as much as possible. Flexibility and effective communication will show the court that the parent intends to continue working with the other parent and keep them a part of the child’s life, but are genuinely seeking what they believe is best for the child in getting sole decision-making authority.
Maintain Your Own Physical and Emotional Health
Whether seeking physical custody or sole legal custody, a key aspect of the judge’s decision will be whether the parent can take care of the child properly. If the parent is not able to maintain their own physical and emotional health, the judge may question how well they will be able to take care of the child. This does not mean that parents with a disability or chronic health condition cannot get sole legal custody, but it does mean that they should be able to show that they are doing everything they can to ensure that their disability or health condition does not prevent them from parenting appropriately. This can include taking medications, attending appointments for checkups or treatments, and even simple actions such as eating healthy meals and getting regular exercise and enough sleep.
Support Your Claims With Documented Evidence
Whether the evidence indicates something negative about the other parent or something positive about the parent asking for sole legal custody, documented evidence is vital to supporting the claims being made and convincing a court that the requested custody arrangement is in the best interest of the child. Parents should collect evidence such as communication logs with the other parent, records of the child’s medical appointments and health conditions, school records including report cards and teachers’ notes, and any documented instances of neglect, substance abuse, or other unsafe or unstable circumstances.
Prioritize the Child’s Best Interests
A parent fighting for sole legal custody is likely prioritizing their child’s best interest by doing so. However, in rare cases, parents do it to “punish” the other parent. Therefore, being able to explain or show how the parent having sole legal custody will prioritize the child’s best interest can help support the claim. This means the parent should document how their decisions will positively impact the child’s well-being. This can be done by highlighting past decisions that have had a positive impact or providing information regarding future decisions and the expected positive impact they will have. If there are examples of the other parent having an opposing opinion and the negative impact their decision had or would have had on the child, this can also be useful. If there are instances where major decisions needed to be made and the other parent was unavailable or unwilling to contribute to the decision-making process, this can also be useful evidence to support a claim for sole legal custody.
Follow Existing Court Orders and Agreements
Failure to follow existing court orders or agreements the parents have already made can be taken as a lack of respect for the court, and may lead to contempt of court charges. Either or both of those possibilities will not help a parent get sole legal custody. Instead, parents should be careful to follow any existing agreements or court orders as closely as possible. If any deviation from these orders or agreements is necessary, parents should document the deviation and the reason for it.
Maintain a Strong Relationship With the Child
Relationships with children can change as they grow. For example, parents of teens may feel as though there is a new distance between them as their teens begin to test their independence and no longer shares every detail of their life with their parent. While relationship changes are often normal, even when children are younger, maintaining a strong relationship with the child is crucial to convincing a court that the requested custody arrangement is in the best interest of the child.
Avoid Alienating the Child From the Other Parent
Parental alienation, or actively trying to damage the relationship between a child and their parent, may not only result in not getting sole legal custody but in losing the current custody arrangement as well. Parents should avoid interfering with visitations, preventing the other parent from accessing school or medical records, making negative statements about the other parent (whether they are true or false), encouraging the child to spy on the other parent, or blocking access to the other parent through phone calls, texts, social media, or other methods. If a parent has concerns about the child’s safety with the other parent, they should speak with an attorney to find out what options they may have rather than simply not allowing the other parent to have access to the child.
Why You Should Hire a North Carolina Child Custody Attorney
While North Carolina courts do not have a typical custody arrangement, they do put the child’s best interest first and prefer to encourage strong relationships between the child and both parents. Part of a strong relationship is the parents’ ability to have input into significant life decisions for the child. Therefore, while sole legal custody is an option, parents may need powerful evidence and reasoning to convince a court. A North Carolina child custody attorney at King Law Offices may be able to assist you by helping you gather and review evidence, recommending a mediator or assisting with the mediation process to help you and your co-parent agree on custody, or preparing for court. Call (888) 748-KING to book an appointment in one of our Forsyth County, Mecklenburg County, Haywood County, or Watauga County, North Carolina offices.