Does My Child Custody Case Have To Go To Court?

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In 2018, there were 3,899 divorces in Mecklenburg County (which includes Charlotte, North Carolina). The year 2018 saw an increase in the number of divorces from 2017, which had 3,256 divorces. These numbers indicate that North Carolina ranks at number 19 for states in which divorces occur.

According to recent surveys, divorces that involve children cost, on average, $6,000 more than a divorce that does not involve children. When children are involved, parents often passionately do what is necessary to protect their children, which can increase the time and effort it takes to finalize a divorce. At Melone Hatley, P.C., our North Carolina family law attorneys understand that you will do whatever it takes to protect your children — and we can help you with that fight.

Filing for Custody in Charlotte, North Carolina: What You Need to Know

Family cardboard cut-out next to a judge

Child custody can be extremely intimidating, especially for parents without involvement with the court before their child custody dispute or divorce. The process is also extremely important because it involves your children — and we know you would do anything to help them thrive. Understanding the basics of the process can help address some common concerns and ease stress.

Who Can File for Custody in North Carolina?

Either parent can file for custody, regardless of the relationship between the parents. The parents could be married, separated, or never married — the only real qualification is that the parent has to be legally declared the child’s parent before asserting custody.

Some relatives, like grandparents, might be able to request custody in a few unique situations, as well. For a relative to obtain custody, the relative must show that the parent is unfit to care for their child. Grandparents might also be able to get visitation rights in some circumstances.

Non-relatives can ask the court for custody, too. However, they must show that the parent is not fit. The third party must also prove they have a substantial relationship with the child. That relationship with the child is critical for non-relative custody.

Where Do I File for Custody in North Carolina?

To request a child custody order, you must file a complaint. You must file the complaint in the child’s home state. For the child’s home state to be North Carolina, they must have lived there for at least six months.

In North Carolina, you file your child custody complaint in the county where the child resides. You can also often file where the child is present or in a county where the parent lives.

How is Custody Determined in Charlotte, North Carolina?

Not every child custody case requires that you go through litigation. However, you still have to have a court order in a North Carolina child custody case. Filing the complaint or agreement alerts the court to your request for an order, even if you have an agreement between the parents about custody.

Mutual Agreement

The two parents involved in a child custody dispute can work together to create a voluntary child custody agreement. For instance, the parents might decide that both will have custody about half of the time, and they will create a schedule that works for them. This schedule is often called a parenting plan.

Once the parents decide on a custody arrangement, a judge will review the agreement and sign off on it to turn it into an order from the court. Without this approval from the court, the agreement between the two parents will likely have no legal effect.

If the parents cannot work out custody issues on their own, they might want to use a third party to help them reach an agreement. They can do this through child custody mediation, collaborative law, or by using an arbiter. If a couple cannot communicate well, a mediator can be a very helpful “go-between” to address custody disputes.

Most parties resolve child custody disputes by agreement. Only a small percentage of disputes will be presented before a judge to decide.


Parents can also choose to file their custody dispute with the court. In some cases, this is the last resort when other methods of attempting to resolve the custody dispute fail. Couples can file for custody as a separate action, or they can include it as part of their divorce proceedings as well.

The parties will present their case in front of a judge, and the judge will decide how the custody arrangement will move forward.

How Does Custody Court Work in Charlotte, North Carolina?

In general, North Carolina follows the common rule that parents have the right to custody of the child above any other family members or third parties. The North Carolina courts also do not favor one parent over the other — both have equal rights to their children unless there are circumstances where it would not be in the child’s best interests to live with or interact with a parent.

When a court decides on custody issues, it will always keep the welfare of the child (also known as the best interests of the child) in mind as part of its decision-making process. It will also consider many other factors. Examples of these factors are included below.

Child’s Age

The court will often consider the age of the child when determining custody. The court will generally analyze age as part of the relationship with the parent. For instance, if an infant is still breastfeeding, it is more likely that the mother will have more time with the child compared to the father. However, apart from this real physical need, the courts do not favor the mother over the father.

Child’s Preference and Relationship with Each Parent

Older children can express their preference for living with one parent over the other. The court will often consider their preference if the child appears mature enough to make this decision. However, the court is not required to consider the child’s preference as part of its decision-making process.

As part of any custody decision, the court will consider the relationship the child has with each parent as well. For instance, if one parent does the majority of the caretaking for the child at home and therefore has a better relationship with the child, that will be considered in a physical custody dispute.

Parent’s Caretaking Ability

Each parent will have a varying ability to care for the child. This consideration will review things like financial ability, time away from home, and the physical house itself. The child’s health will also be a critical part of the child custody evaluation.

For example, imagine one parent frequently works overtime and must have the child stay with a babysitter for most of their time in the home. That type of factor would weigh against an award of full physical custody in many situations.

Mother playing with her son

What Are the Benefits of Going to Court for Child Custody?

In many cases, it is in the child’s best interests to be removed from the care of one parent. Perhaps one parent has abandoned the child, or the parent has a physical or mental impairment that makes caring for the child difficult. Maybe you and your child are experiencing domestic violence in the home, and you have a restraining order in place. In any of those situations, sole custody might make more sense.

If the family court awards you sole custody, you have the exclusive right to make decisions for your child without input from the other parent. There are a lot of situations where sole custody just makes sense under the facts of the case.

What Are the Different Types of Custody in North Carolina?

Child custody refers to the right to make any important decisions about your child (legal custody) and the right to have your child in your physical care (physical custody).

Visitation is a secondary form of child custody in North Carolina. It involves the right to physically (or remotely) visit the child. A court order protects these rights, often subject to some terms and conditions.

While a divorce is pending, a court might also provide a temporary order that sets out temporary custody requirements and a visitation schedule.

Joint Legal

In joint legal custody, both parents work together to make big decisions for their children. These decisions often affect things like education, religion, and healthcare.

Joint Physical

Joint physical custody means the child will live with both parents at some point. While the goal for joint physical custody is often a 50/50 split between households, that does not always happen.

One parent may have more physical time with the child, but both parents share physical custody. The amount of time that a child spends at one house may be different, but both parents are actively involved in the child’s life.

Sole Legal

If one parent has sole legal custody, they make major decisions about the child without input from the other parent. Having sole legal custody does not stop a parent from asking for input or advice from the other parent, but soliciting those opinions is not legally required.

Sole Physical

A parent with sole physical custody will always have the child live with them. The other parent might have a visitation order that provides parenting time, but where the child resides does not change. In those situations, one parent is the primary caregiver while the other parent is the non-custodial parent. The non-custodial parent might also provide child support to the custodial parent.

How Long Does a Custody Battle in Charlotte, North Carolina Take?

How long a custody dispute will take varies a great deal. It fluctuates based on whether you are filing for divorce at the same time. It depends on how many other legal issues you have, as well. As the number of disputes increases, so will the timeline for a divorce or custody dispute.

If you have one dispute, you can expect that a divorce will take about 12 months from start to finish. If you have three or more disputes, the timeline might be more like 16 months.

Mother hugging her daughter while smiling

Melone Hatley Will Stand by You in Court

You should not be afraid to fight for child custody and your parental rights in court. While the process can be daunting, Melone Hatley will walk by your side through the entire legal procedure. We will work through the requirements with you and lend you a listening ear when you need it. Call our Charlotte legal team at 980-288-8909 for more information or to set up an appointment.

Ben Hefferon

Written By Ben Hefferon

Ben Hefferon is a native of Charlotte and has consistently been rated by his peers as a top divorce and family law attorney. His commitment to his clients and dedication to the field of law make him an invaluable asset in navigating the complexities of your case.
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