Custody Types and the Best Interest Standard in North Carolina

Types of custody

Unless a contrary intent is clear, the word “custody” in the custody statute includes custody, visitation, or both (G.S. 50-13.1(a)). A custody order may grant joint custody to the parents, exclusive custody to one person or agency, or custody to two or more persons or agencies, with terms, including visitation, that best promote the interest and welfare of the child (G.S. 50-13.2(b)).

The Judicial Branch explains the terms courts use in practice:

• Legal custody is the right to make major decisions about the child. With joint legal custody, the parents must consult each other and jointly make major decisions, such as school or a major medical procedure.
• Physical custody is the right to have the child in your care. One parent may have primary physical custody and the other secondary physical custody, or time may be split equally.
• Visitation is a secondary form of custody, often used for a parent’s time when it is relatively limited.

The best interest standard

G.S. 50-13.2(a) sets the test: an order for custody awards the child to the person, agency, organization, or institution that will best promote the interest and welfare of the child. In deciding, 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;
• must include written findings of fact that reflect the consideration of each of these factors and support the best interest determination;
• applies no presumption, between natural or adoptive parents, as to who will better promote the child’s interest and welfare; and
• shall consider joint custody to the parents upon the request of either parent.

Unlike some states, North Carolina’s statute does not list numbered best interest factors. The Judicial Branch says the decision can include factors such as each parent’s living arrangements, ability to care for the child, the child’s relationship with each parent, and anything else affecting the child’s welfare, and that a party’s shortcomings as a partner generally carry substantial weight only if they also affect parenting.

The General Assembly’s stated policy in G.S. 50-13.01 includes encouraging child-centered parenting agreements, the active and ongoing participation of both parents when that is in the child’s best interest, and each parent’s healthy relationship with the other parent when appropriate, taking into account mental illness, substance abuse, domestic violence, or any other factor the court deems appropriate.

Domestic violence and safety

• If the court finds that domestic violence has occurred, it shall enter orders that best protect the children and the party who were victims, in accordance with G.S. 50B-3(a1)(1), (2), and (3) (G.S. 50-13.2(b)).
• If a party is absent or relocates, with or without the children, because of an act of domestic violence, the absence or relocation shall not weigh against that party in deciding custody or visitation (G.S. 50-13.2(b)).
• An order may require a parent or other person seeking custody or visitation to abstain from alcohol and may require continuous alcohol monitoring (G.S. 50-13.2(b2)).
• A person whose actions resulted in a conviction under G.S. 14-27.21 to 14-27.24 and the conception of the child may not claim the right to custody of that child (G.S. 50-13.1(a)).

Rights that come with any order

• Records. Absent a court order to the contrary, each parent has equal access to the child’s health, education, and welfare records (G.S. 50-13.2(b)).
• Visitation. Before denying a parent reasonable visitation, the judge must make a written finding 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)).
• Electronic communication. An order may provide visitation by phone, video, or other electronic means. It may supplement, but not replace, custody or visitation, and the time used may not be a factor in calculating child support or be used to justify relocation by the custodial parent (G.S. 50-13.2(e)).
• Military deployment. A court may not consider a parent’s past or possible future deployment as the only basis for its best interest decision, though it may consider any significant impact of deployment on the child’s best interest (G.S. 50-13.2(f)).

Your child’s wishes

The Judicial Branch explains that a child may testify about specific incidents once the judge finds the child understands the importance of telling the truth, and may tell the judge their preferences if the judge also finds the child has reached the “age of discretion.” Judges often consider a teenager’s preference but are not required to follow it, and many judges speak with children in chambers.

Grandparents and other nonparents

• Any parent, relative, or other person claiming the right to custody may bring a custody action (G.S. 50-13.1(a)). A nonparent seeking custody, or receiving custody in a consent order, must attest that nothing of value was paid, offered, or promised in exchange for the child (G.S. 50-13.1(a2)).
• The Judicial Branch explains that to obtain custody, a nonparent must prove that the parents are unfit or have not acted in accordance with their rights as parents, for example by abandoning the child to be raised by someone else.
• A custody order may give visitation to a grandparent in the court’s discretion (G.S. 50-13.2(b1)). Where custody has already been decided, grandparents may seek custody or visitation by motion in the cause on a showing of changed circumstances (G.S. 50-13.5(j)). G.S. 50-13.2A covers visitation with a grandchild adopted by a stepparent or relative.

Primary sources

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

• G.S. 50-13.01, purposes
• G.S. 50-13.1, action or proceeding for custody
• G.S. 50-13.2, who entitled to custody; terms of custody
• G.S. 50-13.2A, visitation of an adopted grandchild
• G.S. 50-13.5, procedure; visitation findings; grandparents
• G.S. 50B-3, relief in domestic violence cases
• North Carolina Judicial Branch, Child Custody help topic
• North Carolina Judicial Branch, Child Support help topic