Cohabitation and child custody issues


According to the law in NC either parent can file for primary custody if it is in the child’s best interest, regardless of whether or not they were married. Since even parents that were married at one time can file for primary custody. Basically, divorce and custody are separate issues in the courts.
Realistically, it will depend a great deal on age of the child, who has been the primary caregiver up to this point and what the parents can agree on. A child of 2 is going to probably need to stay with the parent that has been the primary caregiver, whereas a child of 12 could divide time between the parents.
The attorney may be able to give you the exact law but my suggestion is to attempt to work out what is best for the child. If you and the other parent have been sharing care responsibility then there is no reason to change that scenario completely. The child is going to suffer regardless, but the parents can make it easier on the child by realizing that they can work together to raise the child, even though they are no longer together. This will keep things out of court and save everyone time, money and stress.


Stepmother is correct. The legal relationship between the parents is not relevant to the determination of custody. Either parent can file for primary custody. The courts look to what is in the best interests of the child when determining who will have primary physical custody. It is always best when two parents can agree on what the custodial schedule will be as the parents know more than anyone what their individual children need. Even when two people can agree, it is necessary to have the proper paperwork drawn up to prevent future dispustes.

Erin E. Clarey
Attorney with Rosen Law Firm

Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


What is the law or how does the state of North Carolina handle child custody situations when the parents have been co-habitating as a married couple even though North Carolina does not recognize common law marriage?

Kimberly Lewis