Child Support

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Information provided by the NCATL Education Foundation

When a child's parents separate, decisions regarding the care and support of the child must be made. If the parents are not able to resolve the issues of custody or child support, a judge can be asked to decide. North Carolina law authorizes its district court judges to protect children until they reach majority (usually age 18) by determining what is best for the child when parents cannot agree or when either parent submits the issue to a court. Generally, the child and the parents will be better served by putting the child's welfare first and by agreeing between themselves.

Negotiation or Litigation?

In an effort to avoid litigation, many counties offer or mandate state-supported mediation to facilitate decision-making by the parents. However, when parents either cannot or will not agree between themselves, the legal system authorizes a district court judge to decide who should have custody, how much visitation the non-custodial parent will have, and how much child support the non-custodial parent will pay.

Litigation is expensive, with both parties usually represented by an attorney. Litigation means the parents give up control over decision-making that has an enormous impact on their child and on them. No judge can know as much about a child's needs as the parents do. And since litigation usually ends with both parties feeling bitter and unhappy about the results, use of the courts to resolve issues of custody and support should be a last resort - when there is no other way. In addition, litigation is a very expensive way to resolve differences.

Custody and Visitation

Until the parents execute a written separation agreement with provisions for custody or a court grants custody to one parent, both parents have equal "rights" regarding their child. This does not, however, give one parent a right to take the child away from the other. Usually agreements, as well as court-ordered custody, place the child primarily with one parent and give the other parent time with the child - at least two weekends each month, alternating major holidays, and extended time in the summer.

Joint Custody

Even though agreements frequently use the term "joint custody," orders that are not entered y consent of both parties rarely do. When a judge must decide the issue of custody, it is already obvious the two parties cannot work together and cooperatively resolve matters concerning their child. Since joint custody essentially means little more than both parties are "fit" to parent and can and will cooperate in making major decisions affecting their child, it is rare that a judge will award joint custody to two parties who have been unable to resolve the most basic question - where the child will live.

When separated parents agree upon joint custody or the court decides that the parents should be granted joint legal custody of a child, it does not mean that each parent has physical custody of the child for half of the child's time. It means that the parents should continue to cooperate and should work together to make the major decisions for the child.

Joint custody can, of course, be beneficial for the child if the parents are interested in and capable of working together for the child's best interests and welfare. On the other hand, it can cause more problems if one parent is bent on obstructing or undermining the other parent or the child.

Agreement VS. Order

Custody, whether sole custody or joint custody, is "legal" if it is part of a valid written and properly executed agreement or if part of a court order. Orders may be entered by agreement, i.e., without a trial. Even though a lawsuit has been filed, the two parties may agree and ask the court to approve their agreement. The agreement almost always will be approved; the result is called a consent order which can be enforced by the court.

The form of your custody determination - strictly agreement or order - may make some difference. Each is enforced differently and each is treated differently if in the future a change in custody or visitation needs to be made. You should consult an attorney about what is best for you and your child.

When one parent has legal custody of a child, the other parent, usually, is granted visitation privileges. Except in extraordinary circumstances, it is healthy and desirable for the child to have regular contact with the non-custodial parent. There are two visitation options.

Reasonable Visitation. This means there is no set time for the child visitation, but rather it will be subject to agreement between the parents. Although it provides flexibility, it will not work unless the parents can agree on what visitation is "reasonable."
Structured Visitation. This is a schedule for child visitation that may include visitation every other weekend from Friday evening through Sunday evening, alternating holidays through the year, and several weeks during summer vacation.

Visitation/Child Support Issues

Will the full amount of child support be reduced if the child spends a relatively long period of visitation (three or four weeks) with the supporting parent?

A separation agreement may allow credit, reducing the child support under such circumstances, but all North Carolina courts use guidelines that take into account extended time with the non-custodial parent.

Is there a relationship between child support and visitation?

Some parents with custody refuse to allow visitation when support is not paid, or a parent will withhold child support when not able to see a child. Under North Carolina law, visitation and child support are not related; neither parent has the right to withhold support or visitation. Instead, the aggrieved parent must seek help from the court.

The Amount of Child Support

Both parents have a duty to support his or her children. North Carolina has adopted child support guidelines that apply to all cases and are based upon the income of both parents, the type of custodial arrangement that exists, and factors such as day care and health insurance costs. Forms for determining the amount of support can be obtained from the Administrative Office of the Courts.

Custody Considerations

During a custody trial, the judge considers certain facts and issues to determine the best interests and welfare of the child, the guiding principle in deciding who is awarded legal custody. These are:

What is the child's age?
Who assumed primary responsibility in caring for the child during the marriage?
Who will feed, bathe, clothe, and teach the child during the week?
What is the work schedule of each parent who works outside the home?
What is the physical, emotional, and parenting ability of each parent?
With whom is the child bonded psychologically?
Is either parent trying to prevent the child from continuing a relationship with the other parent?
Is either parent trying to use the child just to hurt the other parent?
Is either parent really unfit, unwilling, or unable to properly and appropriately raise the child?

There is no legal presumption for either the mother or the father as the custodial parent.

Conclusion

Your child will benefit if matters of custody, visitation, and support can be determined amicably. When this is not possible, either parent (or anyone) may petition the court to decide. Custody, visitation, and support issues are not permanently concluded until the child reaches his or her 18th birthday. For the purpose of child support, it may continue until the child graduated from high school or reaches his or her 20th birthday, whichever occurs first.