Obviously, when a couple who is in the process of separating has minor children in the home, custody can become a major issue. Today’s post will discuss the law and theories behind an initial custody determination. As discussed in earlier posts, one way for the parties to resolve the custody issues is through an agreement- either as part of the Separation Agreement or by Consent Order. If the parties can reach an agreement, they are permitted to structure the custody/visitation schedule in whatever way will work best for them and for the children. While this frequently takes the form of primary custody with one parent and the other having visitation one day a week and every other weekend, that is by no means the only available option. In fact, the parties can alternate months, weeks or even days if they choose (although it’s debatable whether an arrangement with that much back and forth is really the best for the kids).  The point is, keeping the custody out of court is often the best way to proceed, and thinking outside the “every other weekend” box can often help the parties reach an agreement that will work for everyone.

Of course, sometimes the parties can’t agree, and that’s when they turn to the court for help. As in most states, if the custody dispute is between two biological parents, both of whom are fit parents, the trial judge has fairly broad discretion in deciding which parent should have custody. The standard used to make the custody determination is found in N.C.G.S. 50-13.2, which says that custody shall be awarded to the person or organization “as will best promote the interest and welfare of the child.” This is frequently referred to as the “best interests” standard, since the issue for the court to determine is what is in the best interests of the minor child. N.C.G.S. 50-13.2 says that “no presumption shall apply” between the mother and father, so, in theory, both parents have an equal shot at custody. In determining the best interests, 50-13.2 basically allows the judge to consider any relevant information. This often includes things like the living arrangements of the parties, work schedules and ease of transition. Although attorneys and parents usually try to keep the children themselves from having to testify, a judge has discretion to interview the children in chambers and consider their wishes.