NC Custody Law Amendment

On October 20, 2015 Governor Pat McCrory signed NC Senate Bill 519, which amends custody statutes in North Carolina. The true effect of this change is open to debate. Some custody lawyers opine it is merely a preamble to the statute regarding policy, whereas others see it is a substantive change to the law. Whether the NC Court of Appeals will weigh in on this amendment remains to be seen.

Looking at the big picture, the amendment is likely a first step towards joint custody as a presumption under the law. The old idea that a child needs a “home base” and is better off living primarily with one parent is shifting to towards the modern view that children need equal or at least significant time with both parents. The current “best interest” standard appears more guided by whether a Judge subscribes to the old view versus the modern view resulting in dramatically different custody rulings among different counties in North Carolina.

The idea for NC Senate Bill 519 started after several fathers in Sampson County, NC were awarded very limited visitation with their children. They contacted their local State Senator Brent Jackson whose staff researched the issue and determined that the default customs of each Judicial District were very different across the State of North Carolina. That led to further communication with Wake Forest Law School of Law and the NC Institute of Government that both advance the idea that new research indicates that children need to spend significant time with both parties and that is what is best for children.

The old “home base” model often results in dad, who is typically the non-custodial parent only being awarded every other weekend for visitation. Sometimes the non-custodial parent also is entitled to a dinner on their “off” week. Union County, Sampson County and other rural counties often subscribe to the older “home base” model in determining the “best interest” of the minor child/ren when awarding custody. Larger counties such as Mecklenburg County and Wake County seem to prefer joint physical custody often via a week-on/week-off schedule between parents. Hence there is often a giant disparity in custody outcomes between cases in Union and Mecklenburg County even though they are adjoining counties.

The original version of the bill allegedly mandated a 65% vs. 35% division of overnights between parents absent specific findings to deviate. Johnston County, NC appears to favor this approach at the moment. After significant resistance to explicitly changing the law, NC Senate Bill 519 was eventually changed to a policy statement regarding child custody. Once again the ultimate question until further action by the legislature is what the NC Court of Appeals is going to do with a policy statement regarding custody that is now written into the law.