Sole and Shared Physical Custody in North Carolina

North Carolina law states that custody of a child may be granted jointly to both parents or exclusively to one parent, but how is that decision made in custody cases? All North Carolina orders for custody must be based on what arrangement will promote the best interest and welfare of the child.

While custody cases in the past used to favor the mother based on the since-abolished tender years doctrine, current custody matters do not give automatic preference to one parent over another. Instead, courts must consider relevant factors like the child’s safety.

Aguilar v. Mayen

In a Court of Appeals case from Edgecombe County, a trial court’s ruling on physical custody of a child was vacated and remanded because the lower court did not sufficiently support its decision to grant the mother sole custody. In Aguilar v. Mayen, Father appealed an order granting sole custody to Mother and awarding him visitation every other weekend.

The unmarried parties’ child was born in June of 2021. Mother filed for child support and submitted to DNA testing to establish paternity in May of 2022. Father then filed for temporary custody and requested a drug test for Mother. The trial court then granted an ex parte order giving temporary custody to Father with supervised visitation to Mother. Eventually, a consent order was entered that granted shared legal and physical custody until a permanent custody hearing could be held.

At this hearing, the parties made numerous allegations about each other.

The child was born of an affair Father had with Mother. During that time, he gave her money, paid her bills, and bought her a house. Mother reports that after learning that Father sold drugs, she told him she didn’t want to see him anymore. Father went to prison for selling drugs, and when he was released he continued to provide financially for Mother and visited her every day.

Mother testified that Father became abusive, including an incident where he slapped her after she told him to leave the house and another incident in which he hit her with the bottom of a machete because she talked to a neighbor.

Wife Learns of the Affair

About one month before the child was born, Father’s wife learned of his affair with Mother, and he ended the relationship with Mother. Father testified that Mother drank heavily at her bar job and outside of work. According to Father, Mother also brought various men home with her.

Both Mother and Father made several arguments that the other parent did not take care of the child properly, specifically that the child’s diaper rash was caused by the other parent. The trial court concluded that the baby was in good health and well cared for. It stated that Mother had cared for the child exclusively during the first year of her life, and the parties and Father’s wife had cared for the child for the next six months of her life. The court then awarded custody to Mother with visitation to Father every other weekend. Father appealed.

Among Father’s arguments were his claims that Mother did not take proper care of the child and that it was not in the child’s best interest for Mother to have sole custody. The Court of Appeals agreed with the trial court’s determination that the child was well taken care of by Mother. However, it vacated the decision to grant sole custody to Mother because the trial court stated that all parties – Mother, Father, and Father’s wife – took good care of the child. Therefore, there was nothing to support the decision to grant sole custody to Mother and visitation to Father.