The North Carolina Family Court Advisory Commission publishes child custody…
Gaining Child Custody in North Carolina
When you are facing a divorce, it is important to be sure that your child custody agreement is part of a legally binding document, and not just a verbal agreement. Your family law attorney can help you decide which type of document is best for your situation. Generally speaking, you have the option to enter into a contract or a court order.
Separation Agreements and Parenting Plans
This is a common type of document created to memorialize child custody and parenting plans because it is often the least expensive. With this agreement, you can address all of the issues including child custody, post separation support, child support, equitable distribution of property and assets, alimony, attorney fees, and more. If the parties were never married, then they can still agree to written parenting plans. These options are less expensive if the parties can come to an agreement. If the parties cannot agree, then your efforts would be better spent in court.
When the parties cannot come to an agreement on child custody matters, they must resort to court action. If you have a child custody trial, then a judge will enter a court order detailing what he or she finds is in the best interest of the child, or children. One party may also initiate a “friendly” lawsuit at the courthouse and if the parties wish to agree on a consent order for custody by having an attorney draft such an order. When deciding what type of document is better for you, you need to take into consideration the cost, including legal fees, and your personal situation. Two other factors you need to think about are the enforceability and modifiability of the documents that are created and/or filed.
For a separation agreement or parenting plan to be enforced, you will have to file an action for breach of contract. This can be complicated with custody cases, because if a breach is found, the forms of relief can be limited. All the court can do is tell the breaching parent not to do what they were doing anymore, and possibly award attorney’s fees. On the other hand, a court order is enforceable by contempt of court. The remedies available for contempt of court include incarceration, fines, and monetary penalties.
Modification of Separation Agreements vs. Court Orders
To modify a separation agreement or parenting plan, the parties must agree to any changes, and the same must be memorialized as an amendment to the original agreement. If the parties cannot agree, then one party has the option to file a lawsuit for custody, and the court will have to make a best interest determination for custody of the minor children. On the other hand, to modify a court order, you must prove that there has been a substantial change in circumstances since the entry of the last order that affects the welfare of the children. The substantial change can be difficult to prove, since the change could not have been foreseeable at the time the original order was entered. This higher burden is also the reason that many attorneys will guide their clients to obtain a court order rather than a separation agreement.
Incorporation of a Separation Agreement
There is also an option in separation agreements to incorporate those agreements into a divorce judgment. Upon the entry of the divorce judgment, the separation agreement may be incorporated and become a court order, which makes your custody arrangement more enforceable and more difficult to modify. The parties must agree to the incorporation at the time the divorce decree is entered.
Contact an Experienced Family Law Attorney Today
If you are facing a divorce or other child custody issue, contact the child custody attorneys at Helms, Robison, Lee & Bennett, P.A. today and let us guide you through the process. We know that going through a divorce is not easy, especially if children are involved. Contact us today to schedule a consultation at one of our conveniently located offices.
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