My husband and I went through this a few years ago. The court is open to hearing a non-custodial’s plea for more time (in your case, joint custody). If you’re in wake county and file the paper work - mediation is the first step. She doesn’t have a choice, she has to go and try to work things out. Is your original order court enforced? We had to file a “motion in the cause” and paid an attorney about $300 to do the paper work and get the ball rolling. After that, it was pretty much up to my husband and ex-wife. When they didn’t come to an agreement in mediation, we hired an attorney who filed paperwork to modify custody. Once the court date was set, and she was served discovery papers, she decided that it was best to settle. The big thing with her was child support. She knew she would lose it if my husband shared joint physical custody. Since the order has been in place, it has worked great for my stepkids. They can pretty much be with their dad whenever they want. Good luck to you!
The Court is not bound by provisions of a separation agreement addressing child custody and child support. North Carolina appellate court rulings have held “visitation privileges are but a lesser degree of custody.” So yes, you may seek “relief” from the Court. You will need to show that it is in your kids’ best interest that the amount of overnights you have with them be increased.
The Court must allow a child of suitable age
Either parent may ask a court to modify custody regardless of whether they signed an agreement in the past. A court can decide custody for any child under age of 18 and can hear testimony from a child at any age, although a child’s testimony is often more credible when they are older.
Lisa M. Angel
Board Certified Family Law Specialist
The Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, NC 27607
(919) 781-1741 direct voice
(919) 256-1660 direct fax
(919) 787-6668 main voice
(919) 787-6361 main fax
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 but a full discussion with an attorney should be undertaken before taking any action.
I have been seperated/divoiced since June 2003. I have my kids about 37% of the overnights. I would like to have additonal nights to make the split be closer to 50/50, my Ex is not willing to agree with this request. Can I seek help from the court or since I agreed at that time of the orig agreement I am I out of luck and wasting my time trying to have the overnights increased? There are no issues about child welfare in this case, both homes provide a loving and stable homelife for the kids so it is not a question of the childrens health or saftey, I just want more time and I think my kids would welcome that as well. One last question at what age would a court consider the childs [teenagers] wishes and does that have any impact on the court direction.