Unless otherwise proven, many courts will assume that a child benefits most from equal time spent with both parents. Unfortunately, that isn’t always the case. There may be extenuating circumstances in a divorce that leads one parent to file for sole custody of their children. In this article, our Pinehurst divorce lawyers address the most common reasons to file for full custody during a divorce.
Sole Physical Custody v. Sole Legal Custody
Before you file, you need to know exactly what kind of custody you are applying for. Sole physical custody means your child lives with you, and you are responsible for their care day-to-day. The other parent may have visitation rights, depending on the decision reached by you and the court. However, regarding their care, you do still need to consult with the other parent before making major decisions.
Sole legal custody is different. This means that you are able to make all decisions about the child by yourself. Oftentimes, the parent with sole custody has both physical and legal custody of the child, but there are cases in which one parent has physical custody and shares the decision-making responsibility with the other.
Reasons to File for Full Custody
At what point should you file for sole custody? Ultimately, if you do go forward with filing, it should be because it will create the healthiest and best environment for the child. If the other parent having the child in their care would endanger them at all, for instance, you should consider taking the steps to gain sole custody.
The most common reasons to file for full custody are found when the other parent:
- Abuses drugs and alcohol.
- Has exhibited behaviors like physical abuse.
- Is struggling with mental health issues that affect how they can care for the child.
- Is unable to support the child financially.
- Is not a stable or consistent caregiver, or if their home is unstable.
- Is imprisoned, or recently released from prison, and it seems shared custody may cause emotional or mental turmoil.
If none of these more obvious issues are present, or if they are difficult to prove, you can still file for sole custody and petition the court. In these cases, the judge will consider more nuanced factors, like the amount of time each parent has to give to the child, the support systems that might make one party a better fit than the other — such as siblings and extended family — and their age and needs.
In North Carolina, the child's wishes are also taken into consideration in these decisions, so long as they are mentally sound and of an age to consent. However, their requests do not override other compelling evidence.
How to File for Full Custody
If you're wondering how to file for divorce, you might be surprised to learn that you may not even need to go to court or have a decision made by a judge. If both parents agree that sole custody is best, they would simply write that into the custody agreement. That agreement would include details about visitation and any influence the parent without custody can have over decisions made.
If you do not agree on sole custody, however, you will have to file a legal complaint. This complaint, along with a summons, must then be served to the other parent. In the state of North Carolina, the case will usually be sent to a Custody Mediation Program before it goes to a judge, where couples are given another chance to work out an agreement about child care. If you still can’t come to a conclusion, you can request that a hearing be scheduled.
What Happens In a Custody Hearing
The judge will be looking for which parent would be the best caretaker for the child. That means that you must either prove that the other is unfit, or that your behavior and abilities will serve the best interests of the child more completely. Once the fitness level of each parent is assessed, the judge will make their decision. If this decision is not in your favor, you may file an appeal.
Final Word: Reasons to File for Full Custody
Creating these cases takes time and effort, and often an understanding of legal processes and language. While you can represent yourself, it is recommended that you turn to a reliable attorney who can help you navigate the process, organize and compile evidence, argue your case, and advocate for you.
If you’re looking for experienced divorce lawyers and child custody lawyers in Pinehurst, North Carolina, schedule a consultation with Van Camp, Meacham & Newman today.