Legal Services

Child Custody

Resolving the Issues of Family Law

Child custody law is perhaps the most crucial issue in family law. To properly defend your rights to custody and visitation with your child, it is essential to have an experienced attorney for child custody on your side.

A child custody lawyer knows the factors a court considers most important when the parents decide custody. A South Carolina child custody lawyer can help parents protect their children from problems caused by their co-parents and preserve relationships with the children.

Montgomery & Hart provides legal assistance during child custody and support to clients throughout North & South Carolina. These states normally allows parents to decide independently about child custody and visitation. Our attorneys understand how to help clients find solutions from a legal perspective without letting emotion cloud their judgment.

Seeking Out Your Children's Best Interest

A court may make the determination based on the child’s best interest if the parents are not able to reach an agreement. The court will consider several factors when determining the best interest of the child, including:

Our firm has handled a variety of divorce cases where child custody was a major issue.

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Child Support

In transitioning to two homes, a family must give its children the support they need. Parents should be sure their children live a lifestyle similar to their former ones if they wish to serve their children’s best interests. Divorce brings about a lot of change, so easing the pain of the transition is critical. At Montgomery and Hart, we help clients determine what amounts of child support are fair according to state law. Furthermore, the lawyers help clients enforce child support orders to ensure parents are held responsible for the care of minor children.

Child Support or Custody Modifications

The state understands that circumstances change. A divorce process is a major event, and several changes can follow it. As a result of these changes, clients may have difficulty fulfilling their obligations under the original divorce settlement. To maintain healthy family relationships after divorce and accommodate compliance with the law, our family law attorneys assist clients in changing these obligations.

Factors Considered In A Child Custody Decision

When deciding child custody, there are a number of statutory factors to consider. In most cases, who has been the child’s primary caregiver in the past and how much responsibility has the other parent assumed for the child’s care are the most critical factors. The court is unlikely to deviate significantly from this status quo unless there are compelling reasons to do so. In the case of parents who were living under one roof until recently, the family court will still process how care was divided for the child and divide it similarly after the separation. If you need help understanding how each of these factors affects your case, our child custody attorney can assist.

A court is likely to adjust the status quo where one parent is unfit or making decisions that adversely affect the child and will grant the other parent more time with the child (as well as more control over decision making). In custody cases, some of the most challenging issues involve allegations that one parent is unfit or has a poor decision-making process. Child custody attorneys who are knowledgeable, experienced, and diligent can significantly benefit from making a case for or against these allegations.

The Different Ways to File for Child Custody

It is first essential to know how to file for child custody before you can obtain full custody. The state offers three ways for parents to petition for child custody.

These ways are:

Obtaining custody of a child during a divorce

The court may choose a guardian ad litem or a lawyer to represent your child, depending on the reason for the divorce and the child’s age. After spending time with your child, this professional will present a detailed report on what is best for the child.

A parenting course specific to issues children face during a divorce may be required of you and your partner.

Requesting custody of a child during a paternity hearing

A paternity test must be done if there is no written proof that you are the child’s parent or if you weren’t legally married.

A child born out of wedlock is under the full custody of the mother. In order to obtain custody of your child once paternity has been established, you must file a separate petition.

Counterclaiming for Child Custody

Go over the proposed parenting plan if you were served with divorce papers or a paternity petition. You have 35 days to file a counterclaim with the proposed plan if you disagree with it.

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The Different Types of Child Custody

Physical Custody

A parent has physical custody if they can have their child live with them. When the child spends significant time with both parents, some states award joint physical custody. When parents live relatively close to each other, joint physical custody works well, as it reduces children’s stress and allows them to maintain a somewhat regular routine.

For children living primarily with one parent and having visitation with the other, the parent with whom the child primarily lives (called the “custodial” parent) generally has sole or primary physical custody, and the other parent (the noncustodial parent) has visitation rights.

Legal Custody

Being legally responsible for raising a child means you have the right and the obligation to make important decisions about that child’s upbringing. If a parent has legal custody of their child, he or she will have the right to make decisions about education, religion, and medical care, for example. Courts often award legal custody as joint custody, which means that both parents share decision-making responsibilities.

You can be taken to court by the other parent if you share joint legal custody with them but exclude them from decision-making. You won’t get fined or sent to jail, but it will likely be embarrassing and create more friction between you and the children. Further, if an attorney represents you, it’s sure to be expensive.

Suppose you feel you and your child’s other parent cannot share joint legal custody (the other parent refuses to communicate about important matters or is abusive). In that case, you can ask for sole legal custody in court. However, in many states, joint legal custody is preferred, so you’ll have to convince a judge that it isn’t in your child’s best interest.

Sole Custody

There are two kinds of sole custody of a child: sole legal custody and sole physical custody. Generally, courts will not hesitate to grant sole physical custody to one parent if the other parent is deemed unfit — for example, because of alcohol or drug addiction or charges of child abuse or neglect.

Most states, however, are moving away from granting sole custody to one parent and are emphasizing the importance of both parents in their children’s lives. If a court awards sole physical custody, the parties often share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In such situations, the parents will make collective decisions about raising the child. Still, one parent will be considered the primary caretaker, while the other will have visitation rights under a parenting agreement.

There is no doubt that you may harbor animosity toward your soon-to-be ex-spouse. Unless the other parent truly harms the children, it’s best not to seek sole custody. However, the other parent may still be allowed to visit under the supervision of the court.

For children living primarily with one parent and having visitation with the other, the parent with whom the child primarily lives (called the “custodial” parent) generally has sole or primary physical custody, and the other parent (the noncustodial parent) has visitation rights.

Joint Custody

When parents who don’t live together share the decision-making duties towards physical control and custody over their children, they are said to have joint custody (also called shared custody). In cases of divorce, separation, or no longer cohabitation, or even if the parents never lived together, joint custody can exist.

Joint custody may be:

  • Joint legal custody
  • Joint physical custody (where the children spend a significant portion of time with each parent), or
  • Joint legal and physical custody.

Joint Custody Arrangements

A schedule combining joint custody is usually arranged that takes into account both parents’ work schedules, housing arrangements, and the children’s needs. The court will impose an arrangement if the parents cannot agree on a schedule. Kids tend to split time between their parents’ houses or apartments during the week. Other joint physical custody arrangements include:

  • Alternating months, years, or six-month periods, or
  • Spending weekends and holidays with one parent while spending weekdays with the other.

It is even possible to have joint custody, in which the children reside in the family home while the parents alternate living in and out of separate housing while the children remain in the family home. It is common to refer to this as “bird’s nest custody” or “nesting.”

Pros and Cons of Joint Custody

A joint custody arrangement ensures the children will continue to have contact and involvement with both parents. Additionally, it eases some of the burdens of parenting for each parent. There are, of course, disadvantages:
  • Children must be shuttled around.
  • Parental noncooperation or ill will can have seriously adverse effects on children.
  • Maintaining two homes for the children can be expensive.

Keep detailed and organized records of your expenses during a joint custody arrangement. Be sure to keep receipts for groceries, school and after-school activities, clothing, and medical care. A judge will be grateful for your detailed records if your ex claims they spent more money on the kids than you have.

Get an Experienced Family Lawyer to Fight for You

Divorce cases tend to be long and stressful, which is why you need a good and experienced family lawyer who will not only assist you in easing the process but will also help you secure full custody of your children.

Do you need help with your divorce and child custody battle?

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Get In touch

Our knowledgeable attorneys at Montgomery and Hart, PLLC can discuss your child custody case with you. If you hire an experienced child custody lawyer, you may be surprised at the difference they can make.

Contact one of our attorneys and they will explain your rights to you and advise you on the following steps to take.

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North Carolina Office: 3440 Toringdon Way Suite 205 Charlotte, NC 28277

South Carolina Office: 410 West Liberty St. Suite 104 Sumter, SC 29150