If you are a parent, the prospect of losing custody or access to your children can be a terrifying one. However, the Supreme Court of the United States has provided case law indicating that parents have a fundamental liberty regarding the “care, custody, and control” of their children, and North Carolina follows the same idea. However, as in all areas of law, there are almost always exceptions to every rule, so if you have been served with a lawsuit for custody or someone is threatening legal action regarding your children, it is important to take a deep breath, read the following, and speak with an experienced family law attorney.
No Prior Order or Agreement Exists
If you and the child’s other parent have never reached an agreement or obtained a custody order from a court, then there is nothing for law enforcement or a court to enforce regarding child custody. Therefore, if you have the child and the other parent is unhappy with his or her visitation or the custody arrangements of the child, then that parent has little choice other than to try to offer and reach an agreement from the parent who has the child. If an agreement cannot be reached, the only other option is for that parent to file a lawsuit seeking custody.
The other side of that situation is that if there is no agreement or order, then there is nothing to stop your children’s other parent from picking the child up for a visit and keeping the child. This is why it is critical to speak with an attorney to protect your legal rights.
There is an Existing Custody Agreement
Sometimes, parents have previously reached a custody agreement, but one is unhappy with the agreement or circumstances have changed where they now want something different. If there is an existing custody agreement, both parents must abide by that agreement or they can be found in breach of contract. In other words, an unhappy parent cannot just keep the child beyond his or her visitation period, as this violates a legally-binding agreement. Instead, the parent who wants the change must convince the other to modify the existing agreement or must file a child custody lawsuit.
There is an Existing Child Custody Order
If there is an existing child custody order, then to make a challenge, the unhappy parent must ask the court to modify the existing order. In order to obtain a modification, the parent must show that there has been a substantial change in the child’s circumstances to justify changing the order. And ultimately, as with any child custody determination, the parent challenging custody must demonstrate that it is in the best interest of the child to change the custody or visitation arrangements set forth in the existing order. If you have been the primary caretaker of the child and you have been an appropriate parent, it is highly unlikely that a court will find that making a drastic change in the child’s life is in the child’s best interest.
Contact New Direction Family Law
Your best course of action in any of these scenarios is to contact New Direction Family Law. We are a family law firm that offers comprehensive legal counsel and advocacy regarding separations, divorces, and child custody issues. Our attorneys are caring, motivated, and experienced. We understand how important your children are and will fight for your legal rights. We proudly serve Wake, Johnston, Durham, and surrounding counties. Call (919) 719-3470 to schedule a consultation, or contact us online at our website.
Sarah J. Hink
New Direction Family Law