What is child custody and visitation?
Child custody includes the right to make major life decisions about a child and the right to have the child in your care. Visitation is a secondary form of custody, which includes the right to visit with a child at times set forth in a court order, sometimes under specific conditions. “Visitation” is frequently used to refer to a person’s parenting time when it is relatively limited.
What is the difference between legal and physical custody?
Legal custody is the right to make major decisions about the child. Physical custody means the right to have the child in your physical care, either all the time or part of the time. Both legal and physical custody can be either shared by the parents or held solely by one parent.
What do sole custody and joint custody mean?
A parent who has sole legal custody can make major decisions about the child’s life without consulting the other parent. If parents have joint legal custody, then they must consult one another and jointly make major decisions, such as where the child will attend school or whether the child will have a major medical procedure. If the parents cannot agree, a court may have to make the decision.
Sole physical custody means that the child lives with one parent only, though the child may visit with the other parent. Joint physical custody means that the child’s time is split between the parents. There are many possibilities for joint physical custody. One parent may have primary physical custody, meaning the child lives with that parent most of the time, while the other parent has secondary physical custody, for example, every other weekend, or regularly scheduled dinner visits. Alternatively, there may be an equal split in which the child alternates between the parents on a regular basis.
Am I required to get a custody order?
Parents who are no longer together are not required to get a custody order, but may choose to do so in case they do not agree about the child’s care. Non-parents do not need a custody order to provide temporary care for a child as long as the parents agree that the child will live with or be cared for by the non-parent. However, schools, medical providers or other third parties may require a custody order before allowing a non-parent to make decisions for a child.
What happens if there is no custody order?
Both legal parents have equal rights to the child if there is no custody order. “Legal parents” are people officially recognized as parents on the child’s birth certificate, a court order such as a child support or adoption order, or an affidavit of parentage. Without a custody order, the rights of non-parents are much more limited, and the parents generally have the right to custody of the child.
What happens when the child turns 18?
At age 18, your child is legally an adult, and the courts no longer have the authority to order custody or visitation.
Does the law prefer one parent over the other?
No. Either parent can be awarded custody of a child of any age, depending on the family’s specific circumstances.
Does failing to pay child support affect a parent’s custody rights?
A parent’s custody rights do not depend on payment of child support, but on the type of relationship with the parent that is in the child’s best interests. A court may consider refusal to pay child support in its analysis of the parent’s ability to act in the child’s best interests.
What is an emergency custody order?
An emergency custody order, sometimes referred to as an “ex parte order,” is an immediate, short-term custody order that a judge can grant under limited emergency circumstances, without hearing from the other party. The grounds for granting emergency custody include situations in which a child is at a substantial risk of bodily injury, sexual abuse, or removal from North Carolina for the purpose of avoiding the authority of the North Carolina courts. Law enforcement can assist in recovering a child with an emergency custody order. If an emergency custody order is granted, a hearing must be scheduled so that both parties have the opportunity to be heard. You should consider hiring an attorney if you need to file for emergency custody, because the process is complex.
Filing for Custody
Who can file for child custody or visitation?
Any parent can file for custody, whether the parents are separated, divorced or never married. Third parties, such as grandparents, relatives, or others who have cared for the child, can file for custody or visitation under some circumstances. To obtain custody, non-parents must prove that the parents are either unfit to care for the child or have not acted in accordance with their rights as parents, for instance, by abandoning the child to be raised by a non-parent. Grandparents may also be awarded visitation in some circumstances when there is a custody case between the parents. Non-relatives requesting custody must prove that they have a substantial relationship with the child.
How do I file for custody?
To ask a court for a child custody order, you must file a complaint. Your lawyer can file the complaint for you, or if you do not have a lawyer, you can file a complaint yourself.
What resources can help me file for custody without a lawyer?
You can find information about the process and child custody paperwork online here. Legal Aid of North Carolina conducts clinics across the state to help participants file for child custody or visitation. You can sign up online here. North Carolina Central University School of Law provides custody forms and one-on-one appointments to assist clients in filing for custody. You can see more information here.
Where should I file my custody case?
Custody cases must be filed in the child’s “home state,” which is the state where the child has lived for the six months before the case is filed. If you had a previous custody case about the same child in a different state, you generally must return to that state to change your custody order as long as one of the parties still lives there.
Within North Carolina, you may file a custody case in the county in which any of the parties lives.
What happens when I file for custody?
After you file your case, you must ensure that the summons and complaint are served on the other parent, generally either by the sheriff or through certified mail. A judge can only make decisions in your case after the other parent has been served with the summons and complaint.
Generally, before a judge can hear your case, it will be sent to the Custody Mediation Program. See the Custody Mediation Help Topic for more details about custody mediation. If you and the other party are unable to agree on a custody and visitation plan in mediation, a judge can hear your case to make a decision for you. In most cases, a hearing will be scheduled only if one of the parties requests it.
I went to court for custody in the past, but the situation has changed. Can I file a new case?
If a judge signed a custody order in your earlier case, you will need to file to modify that order rather than filing a new case. In general, your Motion to Modify should be filed in the court that made the original decision. In some situations, if your previous case was dismissed, you can file a new custody case. See below for more information on modification.
Do I need an attorney for my child custody case?
You are not required to hire an attorney, but child custody cases are often factually complicated and require the presentation of witnesses and documents. If you represent yourself in court, you will be held to the same rules of evidence and procedure as a licensed attorney. Court officials, such as judges and clerks of court, cannot provide you with legal advice about your rights and obligations or the likely outcome of your case based on your family’s circumstances. See the Find an Attorney Help Topic for more information about finding an attorney to represent you.
Can I get a court-appointed attorney for my custody case?
No. The court does not appoint attorneys to represent parties in child custody cases.
Someone has filed a case for custody or visitation against me. What do I do?
If you are able to do so, you should discuss the case with an attorney as soon as possible. You must respond to the lawsuit by filing an Answer within 30 days after you are served with the summons and complaint. You should also attend all mediation and court dates. You will not be arrested for failing to appear in court for your custody case. However, if you do not attend mediation or hearings, you will lose your opportunity to tell the judge your side of the story and request custody or visitation rights.
What is custody mediation?
Custody mediation is a conversation between the parents assisted by a professional mediator. The mediator works with the parents, without attorneys in the room, to come to an agreement about child custody, if possible. You can learn more about mediation in the Custody Mediation Help Topic.
Who will decide my custody case?
If you and the other parent are not able to agree on a custody order in mediation, a judge will decide your case after a trial in which you both have the opportunity to testify and call witnesses. If your judicial district has a family court program, you may have one family court judge assigned to decide all matters in your case. If not, any district court judge can hear your case.
What will the judge consider in deciding my case?
Judges decide child custody based on “the best interests of the child.” This decision can include many factors, such as the parents’ living arrangements, each parent’s ability to care for the child, the child’s relationship with each parent, and any other factors affecting the welfare of the child. While fairness to the parents is important, this is secondary to the child’s welfare. A party’s shortcomings as a spouse or relationship partner will generally only carry substantial weight if they also impact the party’s parenting abilities. An attorney can advise you on the most relevant factors in your specific case.
Can my child talk to the judge about what he or she wants?
There are two situations in which a parent may bring a child to testify in court, and the requirements are slightly different. There is no age limit preventing parents from bringing young children to testify, but this can affect the judge’s view of the parent’s judgment, depending on the age of the child and other circumstances.
- Children can testify as witnesses to specific incidents. Before taking testimony from a child, the judge must determine that the child understands the importance of telling the truth.
- Children can speak to the judge about their preferences. In this case, the judge must determine that the child understands the importance of telling the truth and that the child has reached the “age of discretion,” meaning that he or she has sufficient maturity and good judgment. Judges often consider teenagers’ preferences about where they want to live, but are not required to order what the teenager wants.
Many judges prefer to have children wait outside the courtroom rather than observing the trial. Many judges will speak to children “in chambers,” meaning in a separate room without the parents present, rather than having the child testify in the courtroom.
What is the difference between temporary and permanent custody orders?
Judges may enter either temporary or permanent custody orders. A temporary custody order will be in effect until the judge holds a new trial to make a decision about modifying the temporary order or entering a permanent order. Temporary custody orders are legally binding, but easier to change than permanent orders. If you are unhappy with a temporary custody order, you can schedule your case for a review of the temporary order or for a permanent custody trial. Temporary custody orders can become permanent if neither party requests another hearing for a long period of time. To change a permanent custody order, you must show that there has been a substantial change in circumstances affecting the child since the permanent order was entered.
I am currently in the military. What are my rights?
Specific laws govern the rights of active duty members of the military. If you are unable to attend court due to your active-duty status, you can request that the court case be put “on hold” until you return. You can find more information here.
Enforcement and Modification
The other parent has violated our custody order. What can I do?
You can file a Motion for Order to Show Cause or Motion for Contempt to ask the judge to hold the other parent in contempt of court for violating the order. If the judge finds that the other parent violated the order, the judge will decide the appropriate penalty. Penalties for contempt of court can include a verbal reprimand, a fine, jail time, or requiring the party in contempt to pay the other party’s attorney’s fees.
I have a custody order and want to change it. What can I do?
If you have a temporary custody order, you can schedule another hearing in your case without the need to file additional motions, though filing a motion may be helpful in some cases. If you have a permanent custody order, you must file a Motion to Modify. When you file a Motion to Modify, you must allege in your motion and prove in court that there has been a substantial change in circumstances since the original order was entered, and that those changes are affecting the child in a way that requires the old order to be changed to serve the child’s best interests.
I have a custody order from another state but now live in North Carolina. What do I need to do?
Custody orders from other states are valid in North Carolina. In general, even if you and/or the child has moved from another state to North Carolina, a judge in the original state will continue to make decisions in your case as long as one of the parties still lives there. If everyone has left the original state, you can ask the North Carolina courts to take over your case. If you want a North Carolina judge to enforce or change your out-of-state order, you must begin by registering the order in North Carolina. You can find the petition to register a custody order from another state or country here.
This Help Topic covers the seizure of vehicles for impaired driving and felony speeding to elude arrest. It does not address other vehicle seizures, such as the seizure of a vehicle involved in prearranged street racing, or the seizure of a vehicle used to transport drugs.
When can law enforcement seize a vehicle?
Law enforcement must seize a motor vehicle if any of the following is true:
- The driver is charged with an impaired driving offense and his or her driver’s license is revoked due to a prior impaired driving offense.
- The driver is charged with an impaired driving offense and he or she is not validly licensed and not covered by an automobile insurance policy.
- The driver is charged with felony speeding to elude arrest.
The law enforcement officer must seize the vehicle under these circumstances, even if the driver is not the owner of the vehicle.
Where is the vehicle stored after it is towed?
The vehicle will first be towed to a local storage facility. To find out where the vehicle is initially towed and stored, contact the law enforcement agency that arrested the driver, such as the State Highway Patrol, a local police department, or a county sheriff.
At some point, usually within a few days, the vehicle will be towed to the facilities of a state contractor. Eastway Wrecker, based in Charlotte, serves the western part of the state and can be reached at (877) DWI-TOWS, or (877) 394-8697. Martin Edwards & Associates, based in Linden, serves the eastern part of the state and can be reached at (910) 897-6382.
How can I get personal items out of the vehicle?
Contact the company that is storing the vehicle. You can retrieve your personal property if you can show proof to the company that you own the vehicle or the items. You cannot remove property that is attached to the vehicle.
What happens to seized vehicles?
Prior to the defendant’s trial, it is possible that an owner or lienholder may be able to obtain the release of the vehicle. These release options are discussed later in this Help Topic. It also is possible that the vehicle will be sold prior to trial if the accumulated towing and storage charges reach a certain level. This is referred to as an “expedited sale," and also is discussed below. After the defendant’s trial, if the vehicle still is subject to the seizure law, a judge will release it to an owner or lienholder, or turn it over (“forfeit” it) to the local school board.
When can a vehicle be sold before the driver’s trial?
As noted above, the state contractors can sell a seized vehicle in an “expedited sale” before the driver’s trial if the towing and storage costs reach a certain level. Any net proceeds of the sale will be sent to the clerk of court’s office. The proceeds will take the place of the vehicle in the seizure process, and will be subject to further orders of the court, just as the vehicle would have been.
I am the owner and the driver who was charged in the case. How can I get a vehicle seized in an impaired driving case back?
If you own the vehicle and you were the person charged with impaired driving in the case, you can get the vehicle back only if one the following circumstances applies:
- You are not convicted of the impaired driving charge the led to the seizure (for example, the charge is dismissed or you are found not guilty).
- At the time of the impaired driving offense that led to the seizure, your license was not revoked due to a prior impaired driving offense, and you have vehicle liability insurance. If you believe you fall into this category, you can file this petition with the clerk of superior court’s office in the county where you were charged. You do not have to wait for your impaired driving case to be resolved before filing the petition. A prosecutor may consent to have the vehicle released to you. If not, you can ask the clerk of court to schedule a hearing. At the hearing, a judge will determine whether you are entitled to the release of the vehicle.
I am the owner and the driver who was charged in the case. How can I get a vehicle seized for felony speeding to elude arrest back?
You can ask the court to release the vehicle to you on a temporary basis using this form. The Clerk of Court must order the release of the vehicle to you before trial if 24 hours have passed since the seizure and if all other legal conditions are met, including posting with the court a bond equal to the fair market value of the vehicle, to ensure that the vehicle is returned in the same condition in which you received it if you are found guilty. The vehicle can be permanently released to you only if you are not convicted of felony speeding to elude arrest.
I am the owner, but not the driver who was charged in the case. Can I get the vehicle back?
If you own the vehicle and you were not the driver who was charged in the case, you can get the vehicle back if the driver is found not guilty of the charge that led to the seizure, or if you can prove that you are an “innocent” owner. You are considered an “innocent” owner by law if any one of the following circumstances applies to you:
- If the vehicle was seized in an impaired driving case, you did not know and had no reason to know that the driver’s license was revoked, or you did not know and had no reason to know that the driver lacked a valid license and liability insurance.
- The driver drove the vehicle without your permission, and you have filed a police report for unauthorized use of the vehicle and agreed to prosecute the driver.
- Someone stole the vehicle from you, and you reported the theft of the vehicle.
- You are in the business of renting vehicles, and the driver was not listed as an authorized driver on the rental agreement.
- You are in the business of renting vehicles, and you did not know of the revocation of the driver’s license at the time the rental agreement was entered (for impaired driving seizures), or your rental agreement prohibits using the vehicle while committing a felony (for felony speeding to elude arrest seizures).
- You are in the business of leasing vehicles, you held legal title to the vehicle as a lessor at the time of seizure, and you had no actual knowledge of the revocation of the defendant’s driver’s license at the time you entered into the lease (for impaired driving seizures).
- You are in the business of leasing vehicles, and you held legal title to the vehicle as the lessor when the vehicle was seized (for felony speeding to elude arrest seizures).
What does an innocent owner need to do to get the vehicle back?
For an impaired driving seizure, you can file this petition in the county where the driver was charged. For a felony speeding to elude seizure, you can file this petition in the county where the driver was charged. If you are filing the petition before the defendant’s trial, the clerk of court will review your petition and issue a ruling. If you are filing the petition after the defendant’s trial and conviction, a judge will review and rule on your petition.
I am owner, but not the driver who was charged in the case. Can I get the vehicle back without proving I am an innocent owner?
Yes, the clerk of court may allow the temporary release of the vehicle before trial to an owner who was not the driver. In order for the clerk to release the vehicle to you temporarily, you are required to post a bond for the fair market value of the vehicle to ensure that you will return the vehicle in the same condition in which you received it if the court later decides that you are not entitled to the permanent release of the vehicle. There also are other conditions that apply to a temporary bond release, including that the vehicle must have been seized for at least 24 hours before the clerk issues the release order.
I am a lienholder on the vehicle. How can I get it back?
If you are a lienholder (in other words, a person who has loaned money with the vehicle serving as collateral for the loan), the vehicle may be released to you under certain circumstances. All of the following must apply:
- You held a perfected security interest in the vehicle at the time of the seizure,
- The obligor (in other words, the person owing on the loan) is in default,
- As a result of the default, you are entitled to possession of the vehicle,
- You agree to sell the vehicle and pay into the clerk’s office any proceeds beyond the amount due to you,
- You agree not to sell or transfer the vehicle to the person who was charged in the case or the owner of the vehicle, and
- The vehicle has not previously been released to you as the result of a prior seizure involving the same defendant or the same owner.
You can file this petition for the release of the vehicle in impaired driving cases, and this petition in felony speeding to elude arrest cases. If the owner, the District Attorney’s office, and the school board attorney consent to your petition by signing the waiver of rights section on the form, the clerk will release the vehicle to you without a hearing. If these parties do not consent, there will be a hearing before a judge, and you will need to prove all of the circumstances listed above.
What if the court doesn’t release the vehicle to anyone before the defendant’s trial?
If the defendant is not convicted of the charge the led to the seizure, and the vehicle has not already been sold in an “expedited sale” or released, the court will permanently release the vehicle to the owner. If the defendant is convicted of the charge that led to the seizure, the court will hold a “forfeiture hearing” on the status of the vehicle. An owner or lienholder may request the release of the vehicle at this hearing. The judge will decide whether to release the vehicle to one of these parties, or turn it over (“forfeit” it) to the school board.
What if the defendant is found not guilty or the charge is dismissed?
If the vehicle has not yet been sold or released, and the defendant is found not guilty of the charge that led to the seizure or the charge is dismissed, the judge will order the vehicle released to the owner. The form for this in an impaired driving case is available here. The form for this in a felony speeding to elude arrest case is available here.
Can I appeal the court’s decision forfeiting the vehicle to the school board?
If the driver is convicted in District Court and appeals the conviction to Superior Court, the Superior Court can consider the forfeiture issue anew. Otherwise, the forfeiture decision can be appealed to the Court of Appeals, which reviews cases for error based on the written record.
What if the vehicle was damaged during the offense?
The North Carolina Division of Motor Vehicles will instruct the insurance company to pay the insurance proceeds to the clerk’s office rather than to the policy holder. The proceeds later will be released or forfeited according to the same rules as the seized vehicle. There is a special procedure for vehicles that the insurance company has declared a total loss.
If the vehicle is released to me, how do I get it back?
You can contact the company that is storing the vehicle to arrange a date and time to pick it up, and find out what to bring with you. You should plan to bring a photo ID, a certified copy of the release order, and payment for the towing and storage costs.
If the vehicle is released to me, am I required to pay the towing and storage costs?
Yes. You must pay all towing and storage costs to the company holding the vehicle before the company will release the vehicle to you. There are no exceptions to this requirement. If you were not the driver and the driver is convicted, the court may order the driver to repay you for these costs.