What to Expect at a North Carolina Custody Hearing or Trial

Getting on the calendar

If mediation does not resolve custody, the Judicial Branch explains that one of the parties will need to schedule the case for trial, and that in most cases a hearing is scheduled only if a party requests it. How you request a hearing, how far ahead, and whether a pretrial conference is required are set by your district’s local rules, which trial judges must enforce (General Rule of Practice 22).

• A written motion and notice of its hearing must generally be served at least five days before the hearing, unless a rule or court order sets a different period (Rule 6(d)).
• A motion for custody in a pending action may be made on 10 days’ notice to the other parties (G.S. 50-13.5(d)(1)).

Temporary and permanent hearings

Judges may enter temporary or permanent custody orders. The Judicial Branch explains that a temporary order remains in effect until the judge holds a new trial to modify it or to enter a permanent order, that temporary orders are legally binding but easier to change, and that to change a permanent order you must show a substantial change in circumstances affecting the child.

Presenting your case

1. Your testimony and witnesses. Each side testifies and may call witnesses. Use a subpoena under Rule 45 for a witness who will not come voluntarily. The court may exclude witnesses from the courtroom while others testify, but not a party (Evidence Rule 615).
2. Exhibits. Bring copies for the judge and the other party, and be ready to authenticate each one (Evidence Rule 901). See the evidence guide.
3. Your child. The Judicial Branch notes that many judges prefer children to wait outside the courtroom, that many judges speak to children in chambers, and that bringing a young child to testify can affect how the judge views a parent’s judgment.

The order

• In a case tried without a jury, the court must find the facts specially and state its conclusions of law separately (Rule 52(a)(1)). A custody order must include written findings that reflect the consideration of domestic violence and safety and that support the best interest decision (G.S. 50-13.2(a)).
• Before denying a parent reasonable visitation, the judge must find in writing that the parent is unfit to visit the child or that visitation is not in the child’s best interest (G.S. 50-13.5(i)).
• A judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk. The party the judge designates, or the party who prepared it, must serve a copy on all other parties within three days after entry (Rule 58).

After the order

• Post-trial motions. A motion to amend the findings (Rule 52(b)), for a new trial (Rule 59(b)), or to alter or amend the judgment (Rule 59(e)) must be made or served no later than 10 days after entry of judgment. Rule 60(b) allows relief from a judgment for reasons such as mistake, excusable neglect, or newly discovered evidence.
• Appeal. Appeal of right lies to the Court of Appeals from any final judgment of a district court in a civil action, and from the interlocutory orders listed in G.S. 7A-27(b)(3). Notice of appeal is filed with the clerk and served on all parties within 30 days after entry of judgment if you were served with the judgment within the three-day period in Rule 58, or within 30 days after service if not. A timely motion under Rule 50(b), 52(b), or 59 tolls that period (N.C. R. App. P. 3).
• The order still applies. A custody order that has been appealed is enforceable in the trial court by civil contempt while the appeal is pending, unless the appellate court stays the contempt order (G.S. 50-13.3(a)).

Primary sources

Statutes, rules, and forms change. Check the current version at the source before you file.

• G.S. 50-13.2, who entitled to custody; findings
• G.S. 50-13.3, enforcement of order for custody
• G.S. 50-13.5, procedure; notice of motions; visitation findings
• G.S. 7A-27, appeals of right
• Rules of Civil Procedure (G.S. 1A-1), Rules 6, 45, 52, 58, 59, 60
• Rules of Evidence (G.S. 8C-1), Rules 615 and 901
• General Rules of Practice, Rule 22
• North Carolina Rules of Appellate Procedure, Rule 3
• North Carolina Judicial Branch, Child Custody help topic
• North Carolina Judicial Branch, local rules and forms