How a Judge Determines Custody of Children

Unfortunately about 40% of first marriages end in divorce, often leading to disputes over the custody of children.  Luckily, in North Carolina the parties may resolve the issues regarding their children in a separation or custody agreement creating an enforceable contract between the parents.  Parents may place terms they desire into the contract, and unless illegal or against public policy, those terms will control physical and legal custody, including: visitation, decision making, activities, religion, education and medical needs.

If an Agreement can’t be reached, legal action may result. In N.C. mediation is required before a custody trial.  If mediation is unsuccessful, a trial will determine what custodial arrangement is in the best interests of your children.

Each case will be determined by the facts presented in court based on that family’s situation.  A few of the many questions judges want answered as important in deciding where and with whom the children should reside are:

  •  Which parent is the historical primary caretaker of the children, and which parent is currently acting in that role?
  • Which parent has more knowledge of fine points like the children’s clothing sizes, teacher’s names, grades in school, friend’s names, and favorite things.
  • Which parent is most cooperative with the other regarding decision making and extra custody periods.
  • Where do the parties live and what is their neighborhood like?  What is the rating of the schools the children will attend.
  • What is each parents’ disciplinary style and lifestyle.
  • Does a parent have any special skills/training that tends to be desirable in a custodian, e.g. pediatrician, teacher, etc.

Contrary to popular belief, a child does not have the right to determine where he/she lives at age 12, or at any age.  However, a child of suitable maturity and discretion may be able to provide facts to the judge in chambers that will lead the court to determine the child’s preference and take it into consideration.  A judge rarely asks the ultimate question, “Who do you want to live with?”

Custody cases are unpleasant and can be time consuming and expensive.  It’s far better for parents to resolve their issues in an agreement than have a third party judge do it for them.  Contact an experienced family law attorney for legal advice regarding child custody.

William G. Whittaker is a partner at Weaver, Bennett & Bland, P.A. in Matthews, North Carolina.  He was licensed in 1982 in North Carolina and has been an attorney with the firm since 1988.  Contact William at Weaver, Bennett & Bland, P.A. at (704) 844-1400. The information contained in this article is general in nature and not to be taken as legal advice nor to establish an attorney-client relationship between the reader and William G. Whittaker or the law firm of Weaver, Bennett & Bland, P.A.

Weaver, Bennett & Bland, P.A. serves clients in North Carolina and South Carolina. Located in the town of Matthews between Mecklenburg and Union Counties in North Carolina since 1982, we proudly provide legal services throughout Charlotte, Matthews, Mint Hill, Stallings, Indian Trail, Monroe, Marvin, Wesley Chapel, Weddington, Waxhaw, and other surrounding communities in the Greater Charlotte area. Our clients range from national corporations and major banking institutions to individuals and local companies.