Custody FAQ Page
- I have a Domestic Violence Protective Order that has a section with custody terms. Do I need another custody order?Yes, but the timing depends on whether you are the Plaintiff or Defendant and how satisfied you are with the custody terms in the DVPO. If you are the person to whom the Order of Protection was granted and you are happy with the terms you might not need to take immediate action, but you need to make sure custody is addressed in a separate order before the DVPO expires which is generally a one-year period. Regardless of whether you are the Plaintiff or Defendant, if you are unhappy with the custody terms, you can still file a regular custody action under North Carolina’s regular domestic laws (sometimes called a “Chapter 50”) action. A custody order entered under Chapter 50 will replace any custody terms contained in a DVPO.
- I went through a divorce five years ago and we agreed on a custody order (sometimes called a “Consent Order”). Our kids were only 3 and 5 then and a lot has changed since then. Am I stuck with the Consent Order we agreed to originally and what is the best way to go about trying to change things?
Court orders that address custody can be changed in the future if there has been a “substantial change of circumstances.” While the passage of time alone is not enough to show a significant change, it is usually a good indicator that other things which do affect children and the custody schedule may have changed. This can include changes in children’s schools, parent’s living arrangements, changes in significant others and household members, and changes in the emotional development of the children. The ideal way to make changes to court orders is to start by having an open and honest discussion with your co-parent. If you have an amicable relationship a meeting at a neutral location may be appropriate, and if the relationship is not so amicable, you may want to start by sending an email outlining your proposed changes without making comments that blame, demean, or insult the other parent. If you are not able to make changes to your original order through mutual agreement, then you should consult an attorney for specific legal advice regarding the process of filing a motion to modify the original order.
- My ex-spouse has served me with a lawsuit for custody. The paperwork says there is a court date in two months. Does this mean we have to go before a judge?
Not necessarily. In a large number of cases people are able to work things out before the court date. In some cases, a person may file simply to ensure there is an agreed upon Order in place, not in an effort to cause a dispute. While attorneys often represent clients in court proceedings, most family law attorneys spend a great deal of time helping clients negotiate agreements and consent orders. Additionally, most counties in North Carolina have a mandatory custody mediation program, which requires parents to watch an educational video about co-parenting and sets up a free mediation session for the parties to meet with a court approved mediator. This can be a good avenue to reach an agreement for parents who do not have a high conflict custody dispute.
- How do I know if my case is “high conflict”?While many parents may experience moments of high conflict at the time of a relationship ending or over a specific issue, “high conflict” in family law generally refers to a case where there is a repeated pattern of conflict between the parents, over issues large and small. In such cases, there is a high degree of anger and distrust between the parents, even if the separation is ancient history. The case usually involves a pattern of litigation over a year or the course of many years, and usually involves allegations of substance abuse, mental health issues, domestic violence, or child abuse, made by one or both parents against each other. In such cases, the court process alone is generally not effective in resolving disputes, and in many cases only serves as a conduit for the parties to further the cycle of conflict. Family law attorneys can help guide parents towards therapeutic alternatives and solutions that can reduce conflicts even if conflict is not completely eliminated.
- My child told me that their mommy doesn’t like me. Is my ex using “parental alienation”?Probably not. Parental alienation is a psychological term that gained popularity as a phrase commonly used to refer to situations where a child becomes estranged from one of their parents for seemingly no good reason. There is presently much debate among psychologists over the meaning and casual use of the term, which was originally intended to refer to a “syndrome” of extreme behavior and not as a buzzword for behaviors that can commonly occur in divorced families. “Parental alienation” can be viewed as a spectrum of behavior with most divorced families engaging in some mild behaviors such as an offhand negative remark about the other parent, and few families falling on the extreme end of the spectrum engaging in behaviors such as false accusations of abuse or completely cutting off contact between the child and other parent. Family law attorneys can help parents navigate the specifics of their situation and help parents locate appropriate resources when needed.
- I have anxiety and depression and see a therapist and take prescribed medication. Can my ex use this against me to make me lose custody of our children?Probably not. Millions of Americans suffer from mental health disorders, and anxiety and depression are very common. Many divorcing spouses can also experience situational anxiety and depression during the initial stages of the separation and divorce process. For most people, even if they experience some daily struggles, their symptoms do not significantly impact their ability to parent their children. Further, by seeking appropriate medication and therapy, a parent is actually dealing with the mental health issue in a positive way, which is a demonstration of good parenting. There are cases where a parent’s mental health issues are so severe that it does significantly impair their ability to care for their children or results in the children being unsafe in their care. Such cases typically involve mental health disorders more serious than anxiety and depression, and frequently occur when a parent is not compliant with recommended treatment.
- My ex sent me an email saying I am a “narcissist” because I don’t agree with her about what school the children should go to and what extra-curriculars they should participate in, and that she’s going to prove it in court. Could this happen?Not likely. “Narcissist” is another popular buzz word that almost everyone going through a divorce believes their ex is suffering from. The term “narcissism,” much like the term “parental alienation” can in fact refer to a wide spectrum of behavior, much of which is not severe enough to be characterized as “narcissistic personality disorder.” Additionally, in order to prove that a person is suffering from a specific mental health disorder, the court would have to order a psychological evaluation to be completed and expert reports or testimony would be needed to establish this. While such things do sometimes occur in high conflict cases, this is more the exception than the rule. While it is frustrating when parents cannot reach decisions together, this does not necessarily mean that one parent is a “narcissist.” Even in intact families, parents often disagree over many major and day to day decisions, a struggle which only becomes more difficult once the parents are living in two separate households. In such cases the parties may agree to use, or the court may appoint, a Parenting Coordinator, which is a neutral who assists parents with resolving conflicts and making decisions on disputed issues if the parents cannot agree so the family does not continue to have to go back to court.
- I want my child’s therapist to come to court and testify about how much my son wants to come live with me and how much he hates his mom. How do I make that happen?
Like other fact witnesses, therapists can be subpoenaed to testify in court, but there are special considerations that parents need to be aware of before blazing down this trail. First and foremost, many therapists have contracts which explicitly state that they will not be subpoenaed to court, or have contracts that specify if they are subpoenaed that a retainer fee is required and the hourly fee they bill. Additionally, the therapist may refuse to continue treatment if they are pulled into the litigation process against their will. Most importantly, it may damage the trust between the child and the therapist, ending what may have been a needed therapeutic relationship for the child. Parents also need to understand that a treating provider like a therapist cannot give opinions about which parent should have custody. Most providers are also governed by ethical principles which prevent them from disclosing patient client information absent a court order. While there are some cases where a therapist’s testimony is essential, these are typically custody cases involving more serious issues than the preferences of the child.
- I met someone two years ago and moved to Texas. My daughter has come out to visit me a handful of times during the school breaks and summer which I’ve just worked out with my ex over text message. We have no court order in place and my daughter is 14 now. She’s here for the summer and wants to live with me. Can I enroll her in school here?
Legally yes, but practically no. If there is no custody order in place you and your ex both have equal rights to the child. However, if you refuse to return your daughter and enroll her in school in another state, your ex will have the opportunity to file a custody action in North Carolina and potentially obtain emergency relief to have her returned. You should consult with an attorney who is familiar with interstate jurisdictional issues so you can be fully advised of the potential repercussions of your actions and possible outcomes before you make any decisions.
- My son is 16 and he doesn’t want to spend the night at his dad’s house anymore. He loves his dad and nothing bad has happened, he just doesn’t want to go. Isn’t he old enough to just decide for himself what to do?
No, and decisions about custody should never be left on the shoulders of a child or teenager. If there is a court order in place then parents should encourage their children to follow the court order, unless the refusal is based on parental abuse or neglect, in which case that should be reported to the proper authorities. Absent a situation like abuse where refusal of contact is warranted, it is a slippery slope to tell a teenager that they can choose what they want to do, including whether and when they want to be with each parent. With that said, there comes an age where a parent cannot physically force a resistant child or teenager to visit with the other parent. The first step is always to see if there is an agreement that can be worked out between the parents. If there are legitimate reasons why the child or teenager does not want to visit and the parents cannot reach an agreement on a new schedule or terms, then the parent should follow the appropriate avenues through the court system to change the order or agreement, so this isn’t left the responsibility of the child. If the issue is a strain in a parent-child relationship, family therapy may be helpful.