Feb92026
Family Law Q&A Series

What do I need to prove to get custody rights if I’m not currently the custodial parent? – North Carolina

Short Answer

In North Carolina, a parent who is not currently the custodial parent can seek custody (or more parenting time) by filing in District Court and showing that the requested arrangement is in the child’s best interest. If there is already a permanent custody order in place, the parent usually must first prove a substantial change in circumstances that affects the child since the last order. After that threshold is met, the court decides what custody terms best promote the child’s welfare.

Understanding the Problem

In North Carolina family law, the key question is: can a noncustodial parent ask the District Court for custody rights, and what must be shown to change the current arrangement? The answer depends on whether there is already a court order that sets custody. If there is no custody order, the issue is what custody schedule the court should set. If there is a permanent custody order, the issue is what must be proven to modify that order.

Apply the Law

North Carolina courts decide custody based on the child’s best interest and do not start with a presumption that one parent should win over the other. When a parent asks to change an existing permanent custody order, the court generally requires a two-step showing: (1) a substantial change in circumstances affecting the child since the last custody order, and (2) that the requested change is in the child’s best interest. Custody cases are typically handled in the District Court Division of the General Court of Justice in the county that has proper venue and jurisdiction.

Key Requirements

  • Standing to ask for custody: A parent may file a custody action (including for visitation) even if that parent is not the current custodial parent.
  • Best interest of the child: The court’s central focus is what arrangement best promotes the child’s interest and welfare, considering all relevant factors (including safety and domestic violence concerns).
  • If modifying a permanent order—substantial change in circumstances: When a permanent custody order already exists, the moving parent generally must show a meaningful change since the last order that affects the child, before the court will change custody.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the parent is dealing with a child support matter and is also interested in pursuing custody rights. If there is no current custody order, the parent generally focuses on evidence showing that the requested custody/visitation plan better serves the child’s day-to-day needs and stability. If there is an existing permanent custody order naming the other parent as custodial, the parent typically must identify what has materially changed since that order and how that change affects the child, and then show why the requested change is in the child’s best interest.

Process & Timing

  1. Who files: The parent seeking custody rights (or a change in custody). Where: North Carolina District Court (General Court of Justice) in the proper county under the custody venue rules. What: A custody complaint (for an initial custody case) or a motion in the cause to modify custody (when there is already a case and a prior custody order). When: A modification request is typically filed after the event(s) that make up the substantial change in circumstances, because the change must have occurred since the most recent custody order.
  2. Mediation step in many counties: If custody or visitation is contested, the court often sends the case to custody/visitation mediation before setting a final hearing, unless the court waives mediation for good cause (for example, certain safety or abuse-related concerns).
  3. Hearing and order: If the case does not settle, the judge holds a hearing, considers evidence tied to the child’s welfare, and enters a custody order with terms the judge finds are in the child’s best interest.

Exceptions & Pitfalls

  • Confusing “best interest” with “what is fair to the parents”: The court’s focus is the child’s welfare, not whether one parent “deserves” more time.
  • Not proving the threshold for a modification: When a permanent order exists, evidence often needs to show a substantial change that affects the child (not just a parent’s preference or minor scheduling friction) before the court will rework custody.
  • Relocation and schedule changes: A move or a new schedule can matter, but the key issue is usually how it impacts the child’s stability, schooling, relationships, and ability to maintain a meaningful relationship with both parents.
  • Safety issues and domestic violence: Allegations involving safety can change how the court handles the case (including whether mediation is appropriate) and what restrictions or protections the court may order.
  • Mixing child support and custody proof: Child support and custody are related but decided under different legal standards. A parent can pursue both, but the evidence needed for custody focuses on the child’s welfare and parenting arrangements.

Conclusion

In North Carolina, a noncustodial parent can seek custody rights by asking the District Court for an order that serves the child’s best interest. If a permanent custody order already exists, the parent usually must first prove a substantial change in circumstances affecting the child since the last order, and then show that the requested change better promotes the child’s welfare. The practical next step is to file the appropriate custody pleading in District Court (initial custody or a motion to modify) and be prepared to present evidence tied to the child’s needs and stability.

Talk to a Family Law Attorney

If a child support case is already underway and custody rights are also at issue, it helps to map out a clear plan for what needs to be filed and what evidence matters most under North Carolina law. Our firm has experienced attorneys who can help explain options, prepare the right filings, and track timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Family Law Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.