Board Certified Family Law Specialist Matt Arnold answers the question: “What can I do to gain custody of my child in North Carolina?”
Most parents do not want their children to become pawns in a divorce. However, emotions are often running high in divorce and even the best parents can become blind to their own behavior. In divorce proceedings, most states allow the testimony of the child and his or her preference on what the custody arrangement should be. North Carolina is one of those states.
Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What can I do to gain custody of my child in North Carolina?”
In North Carolina, the ultimate arbiter of custody is the District Court judge. The District Court judge is vested, by statute, with the authority to determine who should have custody of a child and the terms under which custody shall be exercised.
Of course, the decisions of a District Court judge are subject to appeal, but when parties do appeal a District Court decision and one of the state courts of appeal decides to entertain the appeal, those courts frequently uphold the decisions of District Courts, and if they do not, many times they simply clarify the manner in which a judge should have considered the case and send it right back to the District Court to consider the case anew.
A party’s presentation regarding custody is made in District Court, and the person a party needs to convince is the District Court judge. Many parties believe a good way of convincing a District Court judge that they should have custody of a child is to have the child testify before the court. After all, who better knows what is in one’s best interest than oneself?
The problem with that ideas is that minor children are considered “infants” or “incompetents” under North Carolina law. Minor children do not have the capacity, for instance, to enter into contracts. A court will not take a proposal to allow a minor child to testify lightly. A judge will likely conduct a hearing to consider whether testimony would be appropriate in a particular case, and if so, what measures or protections may be afforded to the child while testifying.