Understanding the Problem
In a North Carolina custody case, the key question is when the District Court requires parents to attend court-ordered mediation to try to resolve custody and visitation issues before a judge decides them. This comes up most often when parents have been following a parenting plan that was filed by agreement outside of court, but the plan is not a custody court order, and a disagreement later develops about the schedule, decision-making, or exchanges.
Apply the Law
North Carolina uses a statewide Custody and Visitation Mediation Program. When a custody or visitation action has unresolved issues, the court generally must set the case for mediation unless the court waives mediation for good cause. Mediation is a structured, confidential process intended to help parents reach a workable custody or visitation agreement that can become a court order.
Key Requirements
- A pending custody or visitation action with a contested issue: The mediation requirement is triggered when the pleadings or other circumstances show an unresolved dispute about custody or visitation.
- Referral through the District Court program: The local custody mediation program schedules the required orientation and mediation sessions.
- No good-cause waiver: The court can waive mediation on a party’s motion or its own motion, but there must be facts supporting good cause.
- Different treatment for certain motions: Contested issues raised in motions to modify custody generally must be mediated. Custody or visitation issues raised in contempt or show-cause motions may be sent to mediation but are not subject to the same mandatory language.
What the Statutes Say
- N.C. Gen. Stat. § 50-13.1 requires mediation of unresolved custody or visitation issues before or concurrently with setting the matter for hearing, subject to a good-cause waiver. It also governs confidentiality, unresolved issues, and written agreements resulting from mediation.
- N.C. Gen. Stat. § 7A-494 establishes the statewide Custody and Visitation Mediation Program through the Administrative Office of the Courts and sets mediator qualification requirements.
Analysis
The facts describe parents who share a young child and previously signed a parenting plan that was filed outside of court but is not a custody court order. If a parent files a North Carolina custody action and the other parent contests custody or visitation, the District Court will generally refer the unresolved issues to the custody mediation program. The same rule generally applies to contested custody or visitation issues raised in a motion to modify an existing order.
For example, if one parent files for a custody order because the informal plan is not being followed and the other parent disagrees about the weekly schedule, the dispute ordinarily must be sent to mediation unless mediation is waived. If the parents reach an agreement, it must be put in writing, signed by each party, and submitted to the court. Unless the court finds good reason not to do so, it will incorporate the agreement into an enforceable custody order.
Process & Timing
- Start or reopen the custody dispute: A parent or another person permitted by law files a custody complaint or, in an existing custody case, an appropriate motion.
- Referral and orientation: If custody or visitation is contested, the matter is generally referred to the local custody mediation program before or concurrently with being set for a hearing. The parties ordinarily attend an orientation that explains the process and required participation.
- Mediation: A neutral mediator helps the parents discuss custody and visitation without deciding the dispute or prescribing the outcome. Depending on the circumstances and the parties’ consent, the mediator may speak with the parties together or separately.
- Agreement or impasse: A signed agreement is submitted to the court for possible incorporation into an order. If some or all issues remain unresolved, the mediator reports that fact to the court so those issues can proceed toward a hearing.
Exceptions & Pitfalls
- Good-cause waiver: Good cause may include undue hardship, a court-approved agreement to use voluntary mediation, allegations of child abuse or neglect, alcoholism, drug abuse, domestic violence between the parents, severe psychological or emotional problems, or residence more than 50 miles from the court. A waiver is not automatic. See N.C. Gen. Stat. § 50-13.1(c).
- Confusing an agreement with an order: A mediated agreement must be reduced to writing, signed, and submitted to the court. Unless the court finds good reason not to incorporate it, the agreement becomes enforceable as a court order. See N.C. Gen. Stat. § 50-13.1(g).
- Assuming mediation is on the record: Mediation proceedings are private and confidential, and covered communications are generally privileged and inadmissible. Exceptions include communications made in furtherance of a crime or fraud and applicable reporting duties. See N.C. Gen. Stat. § 50-13.1(e)-(f).
- Trying to mediate economic issues through this program: Child support, alimony, and other economic issues may not be referred under the custody mediation statute. See N.C. Gen. Stat. § 50-13.1(b).
- Failing to attend: Required orientation and mediation sessions should not be ignored. Failure to appear may lead to a show-cause proceeding or other court consequences.
For more context on moving from an informal plan to a court process, see revise a parenting plan that was filed by agreement but is not a court custody order.
Conclusion
North Carolina generally requires mediation when a custody or visitation action contains an unresolved issue, including a contested request to modify custody. The matter must be sent to mediation before or concurrently with being set for a hearing unless the court finds good cause to waive the process. Mediation remains confidential, and the mediator cannot impose a result. The next step is to file the appropriate custody pleading and attend orientation and mediation unless the court grants a waiver.
Talk to a Family Law Attorney
If a custody dispute has started and court-ordered mediation is likely—or a good-cause waiver may be needed—contact our firm for a free case evaluation about the process, preparation, and next steps.
