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Child Custody Questions, Part 1

by | Nov 1, 2021 | Child Custody

Attorney Richard Gantt

Is it possible to get sole custody? Is it possible to get more than half of the custodial time?

I frequently encounter people who are trying to protect their children from being harmed by the other parent. Often, such people feel frustrated and defeated before ever speaking with a lawyer because so many friends have told them something to the effect of “everyone gets 50-50 custody” or “Judges give everyone 50-50 custody unless you can prove some sort of severe endangerment.” Such statements are probably even more discouraging and confusing given the fact that most people have very little understanding of how custody is even determined in North Carolina, and often don’t even have a proper concept of the terms involved. People throw around terms like “full custody” and assume they have meaning regarding the amount of time each parent has with the kids, as well as decision-making authority. In reality, Family Court judges in North Carolina determine “legal custody” and “physical custody” separately. In each case, a Judge will decide legal custody, which refers to which party (or both) will enjoy the ability to decide big-picture issues such as where a child enrolls in school or whether a child will undergo a major medical procedure. Separately from that, a judge will decide physical custody, which involves what amount of time a child will spend in the household of each parent, whether it be every other weekend or every other week.

Regardless of whether we are talking about legal custody or physical custody, I’m here to tell you that the “everyone gets 50-50” myth is simply not true. At all. Such a notion has no basis in North Carolina law. For purposes of what we are discussing in this post, the relevant sections of the North Carolina custody statute read as follows (I have underlined certain portions for purposes of discussion and have omitted other sections):

Ҥ 50-13.2.

(a) An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party….

(b) An order for custody of a minor child may grant joint custody to the parents, exclusive custody to one person, agency, organization, or institution, or grant custody to two or more persons, agencies, organizations, or institutions….”

The portion of the custody statute that I just quoted mandates that a Judge decide custody, whether that means decision-making authority or the amount of custodial time, based upon the “best interests of the child” (or “best interests of the children”). That is the only standard. And a Judge is obligated to make a ruling based upon whatever the weight of the evidence reveals. If you and your attorney can compile admissible evidence, whether it be positive evidence in your favor or negative against the case of the other side, that proves that it’s best for your kid to spend more time with you, then a judge must enter an Order requiring that. There are no exceptions to that requirement. And that means that if you believe your children are better off with you, and that you can prove it, then you always have a chance of getting that outcome in Court.

So why do rumors such as “everyone gets 50-50” persist? I think such misconceptions linger due to a combination of confusion and cowardice. People get confused due to the fact that 50-50 custodial time is an ideal. And when the evidence doesn’t point in the direction of either parent, then a Court ought to give great weight to that ideal. But the vast majority of people who end up fighting over kids are NOT in an ideal situation, and in those cases the evidence usually points in one direction or the other. What did I mean when I mentioned cowardice? I think far too many lawyers are afraid to go to trial and lose. So they conceal their fear and avoid trial by advising litigants that 50-50 custodial time is inevitable and that it isn’t worth fighting for something more. And that message gets spread around through the gossip mill, unfortunately. But that message is patently untrue. The lesson? Don’t follow the advice of cowardly lawyers. The law takes the best interests of your children seriously. If you believe that is worth fighting for, then it’s definitely possible to get the outcome you want in at trial.

See more questions answered in Child Custody Questions – Part 2 >