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Basics of Child Custody and Child Support

Child support and child custody are frequent issues when spouses are planning to divorce. Today we will discuss some of the most basic aspects behind these two broad and complex issues. How do you file a claim for custody and/or support? What are the governing laws in North Carolina? And what are the types of child support you could receive?

First, in order for a North Carolina court to have subject matter jurisdiction – that is, the power of a North Carolina court to hear your complaint for child custody – North Carolina has to be the home state of the child according to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA is codified in our statutes in chapter 50A. “Home state” refers to that state in which a child lived with a parent (or a person acting as a parent) for a minimum of six consecutive months immediately before a child-custody proceeding commences. If the child is not yet six months of age, the term refers to that state where the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period. However, the child must not be the subject of a previous custody determination from an out of state court (50A-201(2)).

Then, as part of the initial complaint for child custody, an affidavit shall inform the court of: 1) where the minor child has resided and who they have resided with in the past 5 years; 2) whether the party filing has participated in any other child custody or visitation proceeding; 3) whether the party filing knows of any other proceeding that affects the one being filed (such as domestic violence, termination of parental rights, adoptions, etc.); and 3) whether the party filing knows the names and addresses of any person not a party to the filed case that has physical custody of the child. (N.C.G.S. § 50A-209).

Pivoting to child support, there are two types of support that can be claimed; both usually are retroactive and prospective. Retroactive support is defined as the support owed for the time before the complaint or motion seeking child support is filed. State ex. rel. Fisher v. Lukinoff, 131 N.C. App. 642, 507 S.E.2d 591 (1998). Whereas prospective means the support to be paid from the date of filing, going forward; it is often called future support. Id. Prospective and retrospective support are most commonly based on the North Carolina Child Support Guidelines, which set a formula for a parent’s obligation for support based on a worksheet that considers primarily income and the type of custody.

A parent’s obligation for retroactive support is calculated (a) as the amount that would have been required had the guidelines been applied at the beginning of the time period for which support is being sought, or (b) based on the parent’s fair share of actual expenditures for the child’s care. A common example is based upon a date of separation, when one parent leaves the marital residence, and before the time in which the parent claiming support has filed a complaint. In that period, the court will apply the guidelines and determine the support obligation for that time period and can order that a lump sum be paid or a periodic payment that goes towards the retroactive support arrears. Hypothetically, if you separated on January 2, 2021, but did not file a claim for child support until May 2, 2021, the court will determine the retroactive support based upon the guidelines. If that obligation was calculated to be $2,000 a month for the time period of January 2 – May 2, then the spouse with the obligation would have to pay $10,000 in total for retroactive child support.

Unincorporated separation agreements that set out child support can limit retroactive support, so speak to an attorney before signing such paperwork. Child custody and child support can end up being very complex matters. Please speak to a family law specialist to understand your options.