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 NCGS § 50A-102(3)
² NCGS § 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 NCGS § 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/parent cannot claim the right to custody or visitation of the child.²

Visitation by the parent who committed violence may be allowed, but only if the judge believes that proper measures can be taken to insure 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.³

¹ NCGS § 50-13.2(a)
² NCGS § 50-13.1(a)
³ NCGS § 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 NCGS §§ 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 NCGS § 50B-3

The steps of a custody case will depend on the particulars of your case. To find out what the process will be like for you, please talk to a lawyer in your area. Some general information is below.

Step 1: File the custody complaint (petition) in court.
In order to start a custody case, you need to file a custody complaint with the court in the county where the parent or the child resides or in the county where the child is physically present.¹ There are other forms that need to be filed with the complaint so please verify with the clerk of courts that you have all the forms you need. Also, there is a filing fee to start the custody case. If you cannot afford the fee, you can fill out a form titled “Petition to Sue as an Indigent” and request that the court waive the filing fee for you. These forms should be available at the courthouse.

Step 2: Get the custody papers served on the abuser.
After you have filed the paperwork and paid the fee to start a custody case, or received a fee waiver, you will have to make sure that the defendant is served with copies of the documents you have filed. Serving the defendant means giving the defendant copies of the documents you have filed. To do this, the defendant can be served personally by the sheriff or other law enforcement officer, a private process server, or anyone who is not a party and is at least 21 years of age. You cannot serve the papers yourself. If a defendant is represented by an attorney, the defendant may also consent to service on his/her attorney in what is known as an “acceptance of service.” In this case, the papers may be served either on the defendant or on his/her attorney, on the defendant’s behalf. If the defendant lives out of state or if you cannot find the defendant, you should consult with an attorney to discuss other ways in which you can have the defendant served with the custody papers.

Step 3: Parenting classes and mediation
Once you start a custody case, many counties in North Carolina require that you and the defendant attend a parenting education class before going forward with your case. You and the other parent will take the parenting classes separately. Each county handles the parenting classes differently. To find out about parenting education in your county, consult with the court clerk at the courthouse.

Additionally, counties in North Carolina that offer mediation require that before seeing a judge you try to resolve your case by mediation.² Mediation is an opportunity to resolve a case without going to court. In counties where mediation is required, somebody from the court will sit down with you and the defendant to try to work out an agreement relating to custody and visitation. If your mediation is successful, your custody and mediation agreement will be written out and approved by a judge, thus becoming a court order. However, if you are a domestic violence victim, mediation may not be required. The court can waive mediation if you can show that domestic violence has occurred between you and the other parent.³ If you have an attorney, you can choose to have your attorney help you with the mediation process. For more information, please see When can I be excused from mediation. What if I am a victim of domestic violence?

Step 4: Appear in front of the judge.
If the mediation is not successful or if mediation is not required due to domestic violence,⁴ your custody case will then go to trial before a judge. At trial, both you and the other parent have the right to present evidence, such as your own testimony, witnesses’ testimony, relevant documents such as police reports or medical records that could prove domestic violence, etc. The judge will consider the evidence submitted by you and the other parent and make a decision about who should have custody, what type of custody that person should have, and what type of visitation the non-custodial parent should have. Having a lawyer represent you at trial is generally best. Go to our NC Finding a Lawyer page for links to free and paid lawyers.

¹ NCGS § 1-82
² NCGS § 50-13(b)
³ NCGS § 50-13.1(c)
⁴ NCGS § 50-13.1(b)

Everything that is said by the parties in the mediation proceeding is confidential. This means that neither of the parties involved in the mediation nor the mediator will be allowed to testify to the judge about what was said in the proceeding. The exception to this rule, however, is if an admission of a crime, fraud or abuse of a child is made.

Note: The mediator may also interview the child or other people to help evaluate the needs of the child. The same confidentiality rules apply to those interviews.¹

¹ NCGS § 50-13.1(e), (f)

You do not need a lawyer to file for custody.  However, custody cases are often complicated, and a lawyer can help you through it.  It also may be difficult for you to file the proper paperwork without the help of a lawyer.  Also, if the other parent has a lawyer, it will be particularly helpful if you have a lawyer as well.

You can talk to or get a lawyer at any time during the course of your custody case, but getting a lawyer at the last minute usually will not be grounds for postponing your case.  Also, many lawyers will not take a custody case at the last minute so it is best to begin your search for a lawyer as soon as you know that there will be a court case.

If you decide to represent yourself (known as being “pro se”) in a custody case, some counties have a pro se self-serve center where you can get the forms that you will need to file.  Wake County has such a center, so does Mecklenburg and a few others.  To find out if your courthouse has a pro se self-serve center, you can call your local courthouse.  Go to NC Courthouse Locations to find the court in your county. 

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

If you, your child, the other parent, and anyone acting as parent have all moved to another state, you may be able to change the state where the custody case is being heard.  If the judge finds that the child, the parents and anyone acting as the parent does not have significant contact with the original state, or if they are not presently living in the state, s/he will consider changing the state where the case is heard.  For more information about modifying an order in a new state, see Changing a final order.

Also, if you are a victim of domestic violence, North Carolina allows the judge to consider this factor in deciding if a particular state is no longer appropriate for the case.¹  You will have to ask the judge who is hearing the case to consider allowing the case to be heard in another state.  This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this.  To find a lawyer, free or paid, go to our NC Finding a Lawyer page.

¹ NCGS § 50A-207(b)(1)

In North Carolina, unless there is a court order stating otherwise, both parents have a right to access the child’s education and health records.  Even if one parent has sole custody, unless the court order specifically prohibits the non-custodial parent from accessing the records, the non-custodial parent has a right to access those records.¹  Therefore, if you believe that you or your child might be in danger if the abuser can see your child’s records becuase your confidential address is listed in those records, for example, you may want to ask the judge for an order stating that the abuser cannot have access to the records.  For advice on when this type of order is usually granted, you may want to talk to a lawyer.  You can find free and paid legal referrals on our NC Finding a Lawyer page.

¹ NCGS § 50-13.2(b)