Affidavit for Child Custody in North Carolina

In North Carolina, the law gives judges in the district courts the right to decide who has custody of minor children. Once a custody case is filed, a judge has the authority to decide where the child is to live and whether one parent or both jointly have the authority to make important decisions about the child’s upbringing.

In making its decision, a court applies the child’s best interests standard. The court would consider a wide range of factors, including such things as which parent provides the majority of the day-to-day care of a child, who consults with the child’s teachers, takes the child to the doctor when necessary, and makes sure that the child experiences appropriately enriching activities. The court would order the custodial arrangements that best serve the child’s interests.

A parent who is a party to a child custody case wants to present all of the facts that would help a judge make their decision, hopefully the decision that would work best for the parent as well as the child. One of the ways in which a parent might present their evidence would be in the form of an affidavit.

An affidavit is a written statement made by an individual and confirmed by their oath or affirmation to the effect that it is true to their knowledge. Of course, it must also be signed by the individual who makes it. It may be used as evidence in a court case. The individual who makes the affidavit is called the “affiant.”

A lawyer consultation in North Carolina would help a person understand exactly what an affidavit is and how they are used in court cases.

What Are Some Examples of Affidavit for Child Custody?

In North Carolina family law cases, the parties may use an affidavit for child custody for a variety of different purposes. Some of the more common uses are as follows:

• Financial Affidavit: The affidavit would include content about the affiant’s financial status, such as their income and expenses. Financial affidavits are often used in cases in which alimony, or spousal support and child support are issues that a court must decide.
  • In these hearings, the court will examine the financial affidavit of each party and receive financial evidence to determine need and ability to pay child support and alimony.
• Equitable Distribution Inventory Affidavit: In an affidavit of this type, the affiant would provide information about a divorcing couple’s property and debts. For example, one party may wish to claim that some property is their sole property, because it was acquired through inheritance or otherwise before the marriage.
  • An affidavit with a complete inventory required for the equitable distribution of property usually presents a full list of what the party claims to be marital and separate property and debt as well as other details needed for dividing the property and debt.
• Expert Witness Affidavits: In some cases, the testimony of an expert witness is used to support the case of one of the parties. For example, an expert witness might offer an opinion on the effect of spousal support payments on the tax situation of both the paying spouse and the one who would receive the support. There are many other issues with respect to which an expert witness might offer testimony, e.g., in child custody and visitation cases and in cases in which spousal support is an issue.

What Are the Features of an Affidavit?

The most important feature of an affidavit is that it must contain admissible evidence. An affidavit is presented to a court as evidence just as the oral testimony of a witness is. In order for a court to consider it as proof, it must meet the requirements of all of North Carolina’s Rules of Evidence. This is something that a North Carolina lawyer would have to determine.

As noted above, an affidavit must bear the signature of the individual who makes it, and that person must swear under penalty of perjury that it is true to the best of their knowledge. Other recommendations for preparing a persuasive affidavit are as follows:

• The individual who makes the affidavit should write it themselves. Of course, the lawyer who plans to present it to the court probably wants to have some input. How much input they have would depend on who is making the affidavit. However, it is advisable to remember that it represents the testimony of the affiant and not the attorney or the party.
• It should contain the affiant’s statement as to the facts they know and observations they have made or what they have witnessed. Only if it is written by an expert witness would it contain opinions and not facts alone.
• An affidavit is the written equivalent of an affiant’s testimony and not a letter.
• Of course, it must be grammatically correct and free of typographical errors and the lawyer who intends to present it to a court wants to make sure of this.
• The affiant must swear under penalty of perjury that the contents of the affidavit are true and correct just as they must swear an oath when they give oral testimony in court.

Affidavits should present specific incidents, dates, and supporting evidence. In some cases, if child abuse or domestic violence is an issue, it might include reference to police reports and/or medical records.

In North Carolina, Are There Any Legal Issues Associated With an Affidavit for Child Custody?

The legal issues that are most likely to be associated with an affidavit in a child custody case would be whether its contents are admissible evidence per the North Carolina Rules of Evidence, as noted above. If the other party were to object to the content or parts of it, then the court would, in all likelihood, hold a hearing on the question of whether the content is admissible as evidence.

How Do I File for Temporary Child Custody in North Carolina?

In some situations, a parent or guardian of a child needs a temporary custody order immediately. An urgent situation would be one in which a child’s safety is at risk. In other cases, a parent simply wants to establish custody while a child custody case is pending before a court makes a final decision.

To obtain a temporary custody order, a parent or guardian first files a motion for temporary custody with the court in the county in which the child lives. They may first have to file a complaint for child custody if a custody case is not pending already.

If the parent needs an order urgently, they would also file an ex parte motion for emergency custody. This motion requests that a judge intervene in a case that involves abuse, neglect, or substantial risk of harm to the child.

Additionally, an affidavit that confirms the child’s residency and reports whether there are any existing custody orders from other states should be submitted.

In North Carolina, Where Does a Temporary Child Custody Order Come From?

A temporary child custody order comes from a court in which an individual, usually a parent of the child, has filed a complaint for child custody or a motion for temporary custody. This must be a court in the county in which the child lives at the time the complaint or motion is filed.

Where Can You Find the Right Lawyer in North Carolina?

If you are involved in a child custody case, you want to talk to a North Carolina child custody lawyer. Your lawyer will review your situation and advise you on how you can present the best possible case and win the arrangements for custody of your child that work best for your child and for you.