Custody is the physical care and supervision of a child under 18 years of age. Physical custody is used to describe the person with whom the child lives on a day-to-day basis. Legal custody is used to describe the person who has the right to make major decisions concerning the child, including decisions about the child’s education, health care, and religious training.¹

There are two different types of custody arrangements: joint/shared custody and sole/exclusive custody.² Then there is visitation, which refers to the time that the child spends with the parent who the child does not live with.

¹ N.C. Gen. Stat. § 50A-102(3)
² N.C. Gen. Stat. § 50-13.2(b)

Joint custody or shared custody means that both parents make the major decisions in the child’s life together (jointly). To make these joint decisions, the parents have to be able to communicate and negotiate with each other to come up with a decision that they both agree on. For this reason, joint custody often is not a good option in relationships where there is domestic violence. Minor day-to-day decisions such as bedtime or what the child will wear are up to the parent who is with the child at the time.

Joint custody does not mean that a child must live half of the time with one parent and the other half of the time with the other parent. It means that physical custody will be shared in such a way to ensure that the child has continuing contact with each parent. Usually, the court will specify with which parent the child will be primarily living.¹

¹ N.C. Gen. Stat. § 50-13.2(b)

There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for more custody or visitation rights than they are comfortable with.

If the other parent is presently uninvolved with the child, he or she may become involved just because a case was started. Also, if the other parent fights for custody, the case may drag on for a long period of time, sometimes over a year. You may need to go to court several times, especially if the other parent also wants custody. The court will look into many aspects of your personal life that you may prefer keeping private such as past mental health issues, your criminal record, substance abuse issues, and details of your personal relationships.

However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:

• the right to make decisions about your child; and
• the right to have your child live with you (residency).

Without a custody order, it is possible that both parents may share these legal rights, even if one parent takes care of the child every day. However, if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.

We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation. You can find legal help by clicking on the NC Finding a Lawyer page.

Some people think they should file for custody so they can get child support. While custody and child support are related, you do not necessarily need a custody order to get child support. A custody order will not automatically give you child support. Go to our Child Support page for more information. Also, you do not need a custody order to receive welfare assistance, medical care, and medical insurance for your child, to enroll your child in school, or to allow somebody else to take care of your child temporarily.

If the judge finds that domestic violence has occurred, the judge must take into consideration the acts of domestic violence, the safety of the child, and your safety when making a custody or visitation decision.¹ However, there are also other factors that the judge will consider when deciding custody and visitation. Therefore, the fact that the other parent committed domestic violence does not necessarily mean that s/he will be denied custody or visitation unless the parent was convicted criminally of first degree forcible rape, second degree forcible rape, statutory rape of a child by an adult, or first-degree statutory rape against you, which resulted in the child being conceived. In this situation, the law specifically says that the offender cannot claim the right to custody or visitation of the child.²

In addition, a parent who is filing for custody or visitation must mention if s/he was convicted of any of the following crimes in his/her petition:

1. a sexually violent offense listed in section 14-208.6(5) of the law;
2. a human trafficking offense;
3. an involuntary servitude offense;
4. a sexual servitude offense; or
5. the sexual exploitation of a minor as defined in sections 14-190.16, 14-190.17, or 14-190.17A of the law.³

Visitation by a parent who committed violence may be allowed, but only if the judge believes that proper measures can be taken to ensure the safety of both you and your child. This may include an exchange in a protected setting or supervised visits. If the judge does not believe that you are in danger from the abuser, the judge may order unsupervised visitation without any measures to protect you or your child. Therefore, if you feel there is still a risk of violence or danger, you or your lawyer must convince the judge that you and your child need protection.⁴

¹ N.C. Gen. Stat. § 50-13.2(a)
² N.C. Gen. Stat. § 50-13.1(a)
³ N.C. Gen. Stat. § 50-13.1(a1)
⁴ N.C. Gen. Stat. § 50B-3

An emergency custody order is a temporary order that only lasts until you go to court and have a full custody hearing. An emergency, ex parte temporary order for custody that would change the living arrangements of a child or changes custody can only be issued if the judge, or the magistrate who acts as a judge, determines that the child is exposed to a substantial risk of bodily injury or sexual abuse or if there is a substantial risk that the child may be abducted or removed from the state of North Carolina.¹

Filing for emergency custody is a complicated process, and it is recommended that you consult with an attorney to see if you may qualify for it.

If North Carolina is not the “home state” of your child but you and your child are in North Carolina, you can file for emergency custody if the child has been abandoned or if a custody order is necessary to protect the child because you, the child, or a sibling of the child has been threatened with or subjected to abuse.¹ You may also request temporary custody through a domestic violence protective order. For more information on the process, please see our NC Domestic Violence Protective Orders (“50B orders”) page.

¹ N.C. Gen. Stat. §§ 50A-204; 50-13.5(d)(3)

If a domestic violence protection order (DVPO) has been granted, the order may include temporary custody of minor children and temporary visitation rights. Be sure to tell the judge if you would like temporary custody included in the DVPO. Custody granted with a restraining order can only last for up to one year until the order expires. Even if the protective order is renewed, the custody provision will not renew.

If you request temporary custody as part of your DVPO, the judge must consider the following factors when determining custody or visitation rights:

• whether the minor child was exposed to a substantial risk of physical or emotional injury or sexual abuse;
• whether the minor child was present during acts of domestic violence;
• whether a weapon was used or threatened to be used during any act of domestic violence;
• whether the abuser caused or attempted to cause serious bodily injury to you or your minor child;
• whether the abuser placed you or your minor child in reasonable fear of imminent serious bodily injury;
• whether the abuser caused you to engage involuntarily in sexual relations by force, threat, or duress;
• whether there is a pattern of abuse against you or your minor child;
• whether the abuser has abused or endangered the minor child during visitation;
• whether the abuser has used visitation as an opportunity to abuse or harass the aggrieved party;
• whether the abuser has improperly concealed or detained the minor child;
• whether the abuser has otherwise acted in a manner that is not in the best interest of the minor child.¹

Also, if the judge grants visitation as part of a DVPO, the judge must also provide for safety and well-being of you and your minor child. The judge may also consider supervised visitation, exchanging the child in a safe place, and other factors that would contribute to the child’s safety.¹

¹ N.C. Gen. Stat.§ 50B-3

There is a filing fee to start a custody case and have the sheriff’s department deliver (serve) your court papers to the other parent. To find out how much you will need to pay, you can contact your local court. If you cannot afford to pay the fee, you can fill out a “Petition to Proceed as an Indigent” form.¹ This form should be available at your local courthouse. You can also find it online on the North Carolina Courts website or use the “Guided Interview” program on LawHelpNC.org.

¹ See Form AOC-G-106

Custody is based on what the judge believes is in the best interest of the child.  The law says the judge must consider “all relevant factors”¹ to determine a child’s best interest but does not offer a specific list of what those factors are.  The law does specifically say the following, however:

1. If the judge finds that domestic violence has occurred, the judge will consider 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.¹  The factors the judge must consider are the same as they would be if you were filing for temporary custody as part of a DVPO.  Those factors are spelled out here: Can I get temporary custody if I have a restraining order against the other parent (DVPO)?
2. If either parent is in the military, the judge cannot consider a parent’s past deployment or possible future deployment as the only basis in determining the best interest of the child but the judge can consider any significant impact on the best interest of the child regarding the parent’s past or possible future deployment.²  In other words, just the fact that the parent may have to relocate or enroll the child in a new school is not automatically supposed to be considered a negative factor against the parent.  However, if the other parent can prove that for this specific child, enrolling in a new school or being away from half-siblings, for example, would significantly harm your specific child, this may be considered.³

When you go to court, you want to be prepared with as much information as possible about yourself, the other parent, and your child. In order to show the judge that you deserve custody of your child, it is important that you have a good knowledge of your child’s interests, abilities, care, etc.  For legal advice, please consult with an attorney who is knowledgable about custody law.  See our NC Finding a Lawyer page for referrals.

¹ N.C. Gen. Stat. § 50-13.2(a)
² N.C. Gen. Stat. § 50-13.2(f)
³ See uniform law comment to subsection f in N.C. Gen. Stat. § 50-13.2

The judge can appoint a parenting coordinator at any time during a child custody case, including after a final order is issued or after one parent is held in contempt for violating a custody order, if:

1. all parties agree (consent);
2. one party files a motion to request a parenting coordinator and proves the factors in the “note” below; or
3. the judge decides on his/her own that one is needed based on the factors in the “note” below.¹

Note: In the situations described in numbers 2 or 3 above, the judge can only appoint a parenting coordinator if all of the following are true:

• appointing a parenting coordinator would be in the best interests of any minor child in the case;
• the parties are able to pay for the cost of the parenting coordinator; and
• the judge determines that it is a “high-conflict case,” which means that there is an ongoing pattern of any of the following:
  
  • excessive litigation;
  • anger and distrust;
  • verbal abuse;
  • physical aggression or threats of physical aggression;
  • difficulty communicating about and cooperating in the care of the minor children; or
  • other conditions that make the judge believe that a parenting coordinator is necessary.²

The order appointing a parenting coordinator must state the issues that the parenting coordinator is supposed to help the parties work on and decide. Any decision the parenting coordinator makes must be followed by the parents and can be enforced in court just as a judge’s order would be, unless a parent files a motion to ask the judge to overturn it and the judge agrees. The issues that a parenting coordinator can deal with include, but are not limited to:

• transition time, pickup, or delivery;
• sharing of vacations and holidays;
• method of pickup and delivery;
• transportation to and from visitation;
• participation in child or day care and babysitting;
• bedtime;
• diet;
• clothing;
• recreation;
• before- and after-school activities;
• extracurricular activities;
• discipline;
• health care management;
• changes in schedule that do not greatly interfere with the basic time-share agreement;
• participation in visitation, including significant others or relatives;
• telephone contact;
• changes to the child’s appearance, including tattoos or piercings;
• the child’s passport; and
• education.³

¹ N.C. Gen. Stat. § 50-91(a)
² N.C. Gen. Stat. §§ 50-91(b); 50-90(1)
³ N.C. Gen. Stat. §§ 50-91(c); 50-92(a), (b), (b1)

In counties in which mediation is offered, mediation is required unless a judge or other officer of the court decides that you do not have to attend. To request a waiver of mediation, you can fill out a form called “Motion and Order for Waiver of Mediation.” There are several reasons for which the judge could grant the waiver. Here are some examples, but other reasons may be considered as well:

• you are a victim of domestic violence by the other parent;
• the defendant has abused or neglected the child(ren);
• allegations of alcoholism or drug abuse of the other parent;
• allegations of severe psychological, psychiatric, or emotional problems of the other parent;
• if you live more than 50 miles from the courthouse of the county where you are filing your case;
• you and the defendant have agreed to private mediation (which you would have to pay for on your own); or
• any other reason why you believe the mediation would cause you undue hardship.¹

¹ N.C. Gen. Stat. §50-13.1(c)

Learn about what types of custody are available and how domestic violence might affect custody in your state. Think about what you will ask for, what would be best for your child, and what would be safest for both of you.  

You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge looks at to determine what’s best for your child. You can see How will a judge make a decision about custody? for more information.

Custody cases are complicated, so you may want to get a lawyer. If you can hire someone, you can use this list of questions as your guide when deciding which lawyer to choose. If you can’t hire a lawyer, you may at least want to try getting a free or low-cost consultation to help you make a legal strategy for your case.

The next step in the custody process is to have “preliminary” court dates. Preliminary means introductory or preparatory. These might have a different name in your state, such as “first appearance,” “status conference,” or something else. They are when certain issues can be dealt with in the early stages of the case. Some of the issues that might be dealt with are:

• problems with service of process;
• referrals to parenting classes or mediation;
• temporary custody and visitation orders; and
• pretrial motions.

During this stage, the judge will often give temporary custody and visitation orders that last while the case continues. In some cases, the judge may assign a guardian ad litem or an attorney for the child.

For more information to help you prepare for the preliminary court dates, go to The first appearance in our Before the Trial section. 

If you disagree with the judge’s order, there are a couple of legal actions you would need to file right away, such as a motion for reconsideration or an appeal.

• A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
• An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.

Each state has a set time limit to file these actions, usually ranging from 10 to 60 days. To know your case’s exact timeframe, you should ask an attorney in your state.  

You might also be able to ask the judge to change your order in the future if there is a “substantial change of circumstances” after the case is decided. You can do this by filing a motion or petition to change (modify) the order. However, usually, this can only be filed under certain circumstances. Here are a few examples of events that might be considered substantial changes in circumstances:

• The other parent gets sent to jail or charged with child abuse or neglect;
• The other parent is not following the custody and visitation order; or
• Your child’s needs change in a big way.

Since custody is decided in the best interest of the child, an order is not usually permanent.  If you have a custody order already in place, you can petition the court to make changes to it (modify it).  Generally, you can only ask to have a custody order modified if there has been a “substantial change in circumstances.”¹  Some examples of “substantial change in circumstances” could be if one of the parents is arrested, if the child is being abused, etc.  In North Carolina, a finding by a judge that domestic or family violence has occurred since the last custody determination could be considered a change in circumstances.

To modify a custody order, you will need to go to the court that issued the order, even if you have moved.  Generally, once a court has power over a case (jurisdiction), that court will keep jurisdiction, even if you move to another state.  If you have moved, you can ask the court to change the jurisdiction to the new state that you are in.  This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this.  Go to the NC Finding a Lawyer page to find legal assistance.

¹ N.C. Gen. Stat. § 50-13.7(a)

The custody order may allow you to take your kids out of the state, prohibit you from taking the kids out of the state, or not address this issue.  The judge may require that you post money (a bond) or other security conditioned upon the return of the child to the state.  If either you or the other parent take a child out of the state with the intent of violating the custody order, either of you may be charged with a felony.¹

If your order says you cannot take the child out of state or doesn’t address it, you may have to return to court to get permission to leave the state with the child, depending on how long you plan to be outside of the state.  We strongly suggest that you talk to a lawyer who can review your custody order and advise you on what steps you need to take. Go to NC Finding a Lawyer for free and paid legal referrals.

¹ N.C. Gen. Stat. § 14-320.1