On Joint Custody


I still handle custody cases.  And I still benefit from having a look at the law each time I handle a case.  This is how North Carolina law guides District Court Judges to make child custody decisions:

An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party. An order for custody must include written findings of fact that reflect the consideration of each of these factors and that support the determination of what is in the best interest of the child. Between the parents, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent.  N.C. Gen. Stat. § 50-13.2.

I’ve added emphasis to the final sentences.  How these sentences play out in application differs across the State.  In Buncombe County, joint and equal legal and physical custody is awarded frequently.  That tendency looks a lot like a presumption that the law doesn’t support.

The second sentence concerning joint custody was added by the General Assembly in 1987, to make it clear to the Court that joint custody is legally permissible in the State, but certainly not presumed.  Here is what a leading authority on this statute has to say:

The law of North Carolina never jumped on the joint custody bandwagon. The General Assembly granted the authority to trial courts to award joint custody in 1987 by amending N.C. Gen. Stat. § 50-13.2, but the statute never had any of the features that encouraged the trial court to order it over the opposition of one of the parents. The current statute recognizes the power of the court to award joint custody, but only at the request of one of the parents. The court has no authority to consider joint custody on its own motion, and the court may order joint custody only to parents. Moreover, nothing in the statute encourages the court to order joint custody. There is no presumption in favor of the award although North Carolina does have a friendly parent provision.  3-13 Lee's North Carolina Family Law § 13.61 (2017).

In other words, joint custody may only be ordered when parents request it.  And, even then, joint custody should only be awarded if it is truly the arrangement that best promotes the interest and welfare of a child.