Custody in NC


#1

I am recently separated, my husband moved to NY, has been there over a month. He wants to come home to see the children for a weekend; however, we do not have a separation agreement outlining custody as of yet. If I don’t have legal and physical custody per the State or an agreement, is there a chance he could take them up there? I guess I’m asking if it would be idiotic for me to let him take them away from me if even for an afternoon.


#2

You can’t keep your STBX from his children. Since you don’t have a custody agreement or order, then you both have equal access/rights. Do you fear he will take them back to NY?

This is why it is SO important to have agreements on custody and visitation…for just this purpose. Then you both understand what is allowed and not allowed and if someone breaks the agreement, they can be held liable. Without an agreement, you have no back-up.


#3

I don’t believe he would do that; however, there is always uncertainty during these situations. I think I will suggest that the visit be made at our marital home.


#4

Your husband does have the right to see the children, however if you fear he will take them I would suggest you offer the martial residence as the visitation site.
If your husband does take the children you will need to file an action for emergency custody and plead your case to a judge to order their return. Its better to be safe than sorry, if your husband accepts the idea of visitation with you present that’s what I recommend you do.


#5

Would an agreement that we both sign outlining custody that is notarized do? I may have this completed before the visit.


#6

Yes, however a notarized agreement Is enforceable only by filing a breach of contract action if the terms are not adhered to. This process takes longer for the court to enforce, but nonetheless is a valid and binding document. Further, a separation agreement that outlines custody is easier to change, in that your husband could at any time file an action suing you for custody.
I normally recommend that custody be spelled out in a court order ( which can be done by consent). Court orders are more readily enforced by law enforcement, and the power of the court to hold a party in violation of its terms in contempt. Further, a party seeking to change a court order on custody must show the court that there has been a substantial change in circumstances before a court will modify the current arrangement.
That being said, it is not always necessary to deal with custody in a court order. If you and your husband have a relatively stable ( all things considered) relationship and you trust that he will honor a contract you can take that route.