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For parents thinking about separating, the most important and emotionally charged question is frequently, “How will it affect the kids?” The negative impact of separation and divorce on children is well known, and a custody battle can quickly become the ugliest and the costliest part of the divorce process. This is why it is becoming more and more common for parents to work hard to make voluntary child custody agreements (also called Parenting Agreements) outside of court.
How Do Courts Decide Who Gets Custody?
The most important legal rule to understand up front is that the United States Supreme Court has said that parents have a constitutional right to custody of their children. This means that in any custody dispute between a child’s legal parent (whether biological or by adoptive) and a non-parent, such as a grandparent or other relative, there is a strong presumption in favor of the parent. In a custody dispute between two parents, each has a constitutional right to custody. This does not apply to parents who have lost their legal parenting rights.
Because both parents, in a typical case, have an equal constitutional right to custody, it is difficult and uncommon to convince a court to award custody to one parent alone and to deny any right to custody or visitation to the other. From the court’s perspective, the child custody determination is not so much about the parents but rather it is about the children. The “best interest of the child” standard is the main guideline the courts use to determine custody disputes. This flexible rule allows the court to consider all the relevant evidence and circumstances of the case to figure out what kind of custody arrangement is best for the child.
At one time, there was a presumption that young children should be in the primary custody of their mothers. Known as the “tender years doctrine,” this rule is no longer the law in North Carolina. The parents have an equal right to custody of the child, and there is no presumption for one parent over the other merely based on the gender of the parent.
Types of Custody Arrangements
The most common type of custody arrangement gives primary custody (sometimes called sole custody or exclusive custody) to one parent and visitation rights (sometimes called temporary or secondary custody) to the other parent. This kind of arrangement usually gives the primary custodial parent the right to make major decisions concerning the child and allows the child to have a stable home environment. Likewise, it allows the other parent to spend time with the child as well.
The main alternative to the first type of arrangement is “joint custody.” Joint custody may still involve an unequal sharing of physical custody of the child, but the parents share the decision-making authority. This kind of arrangement is usually avoided in situations where the court believes the parents will be unable to work together for the child’s best interests.
Shared custody is another alternative. Shared custody usually refers to arrangements in which the children spend similar amounts of time with each parent. The time spent with each parent does not necessarily have to be equal to be considered shared custody. In the context of child support, shared custody means the child spends at least 123 nights per year with each parent.
As you can see, there are many different terms that can come into play in the context of child custody. As you can probably imagine, there are so many terms with such similar meanings that one judge might interpret one of them differently than another judge. For this reason, it is extremely important to define all the terms you use in a parenting agreement or child custody consent order.
Voluntary Custody Agreements
As with the other areas of family law, the issue of child custody can be settled out of court. In fact, most parents are able to come to a voluntary agreement about custody because they recognize the harm a custody battle can cause to children. Voluntary custody agreements are usually done in one of three ways: 1) in a separation agreement and property settlement (SAPS), 2) in a separate parenting agreement, or 3) in a judicial consent order. While all three are binding, a judicial consent order is usually the best option.
A consent order is an agreement between the parties that is then submitted to the judge to be entered as an order of the court, which means it is backed up by the court’s contempt powers. Violation of a separation or parenting agreement may require more steps and more time to deal with than violation of a consent order. Also, in the event of parental kidnapping, a consent order can help you get the police into action faster than a separation or parenting agreement.