North Carolina § 50-13 - 5. Procedure in actions for custody or support of minor children.

§ 50-13. 5. Procedure in actions for custody or support of minor children.

Procedure. - The procedure in actions for custody and support of minor children shall be as in civil actions, except as provided in this section and in G.S. 50-19. In this G.S. 50-13.5 the words "custody and support" shall be deemed to include custody or support, or both. Type of Action. - An action brought under the provisions of this section may be maintained as follows: As a civil action. Repealed by Session Laws 1979, c. 110, s. 12. Joined with an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce. As a cross action in an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce. By motion in the cause in an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce. Upon the court's own motion in an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce. In any of the foregoing the judge may issue an order requiring that the body of the minor child be brought before him. Jurisdiction in Actions or Proceedings for Child Support and Child Custody. - The jurisdiction of the courts of this State to enter orders providing for the support of a minor child shall be as in actions or proceedings for the payment of money or the transfer of property. The courts of this State shall have jurisdiction to enter orders providing for the custody of a minor child under the provisions of G.S. 50A-201, 50A-202, and 50A-204. to (6) Repealed by Session Laws 1979, c. 110, s. 12. Service of Process; Notice; Interlocutory Orders. - Service of process in civil actions for the custody of minor children shall be as in other civil actions. Motions for support of a minor child in a pending action may be made on 10 days notice to the other parties and compliance with G.S. 50-13.5(e). Motions for custody of a minor child in a pending action may be made on 10 days notice to the other parties and after compliance with G.S. 50A-205. If the circumstances of the case render it appropriate, upon gaining jurisdiction of the minor child the court may enter orders for the temporary custody and support of the child, pending the service of process or notice as herein provided. A temporary order for custody which changes the living arrangements of a child or changes custody shall not be entered ex parte and prior to service of process or notice, unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina courts. A temporary custody order that requires a law enforcement officer to take physical custody of a minor child shall be accompanied by a warrant to take physical custody of a minor child as set forth in G.S. 50A-311. Notice to Additional Persons in Support Actions and Proceedings; Intervention. - The parents of the minor child whose addresses are reasonably ascertainable; any person, agency, organization or institution having actual care, control, or custody of a minor child; and any person, agency, organization or institution required by court order to provide for the support of a minor child, either in whole or in part, not named as parties and served with process in an action or proceeding for the support of such child, shall be given notice by the party raising the issue of support. The notice herein required shall be in the manner provided by the Rules of Civil Procedure for the service of notices in actions. Such notice shall advise the person to be notified of the name of the child, the names of the parties to the action or proceeding, the court in which the action or proceeding was instituted, and the date thereof. In the discretion of the court, failure of such service of notice shall not affect the validity of any order or judgment entered in such action or proceeding. Any person required to be given notice as herein provided may intervene in an action or proceeding for support of a minor child by filing in apt time notice of appearance or other appropriate pleadings. Venue. - An action or proceeding in the courts of this State for custody and support of a minor child may be maintained in the county where the child resides or is physically present or in a county where a parent resides, except as hereinafter provided. If an action for annulment, for divorce, either absolute or from bed and board, or for alimony without divorce has been previously instituted in this State, until there has been a final judgment in such case, any action or proceeding for custody and support of the minor children of the marriage shall be joined with such action or be by motion in the cause in such action. If an action or proceeding for the custody and support of a minor child has been instituted and an action for annulment or for divorce, either absolute or from bed and board, or for alimony without divorce is subsequently instituted in the same or another county, the court having jurisdiction of the prior action or proceeding may, in its discretion direct that the action or proceeding for custody and support of a minor child be consolidated with such subsequent action, and in the event consolidation is ordered, shall determine in which court such consolidated action or proceeding shall be heard. Custody and Support Irrespective of Parents' Rights Inter Partes. - Orders for custody and support of minor children may be entered when the matter is before the court as provided by this section, irrespective of the rights of the wife and the husband as between themselves in an action for annulment or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce. Court Having Jurisdiction. - When a district court having jurisdiction of the matter shall have been established, actions or proceedings for custody and support of minor children shall be heard without a jury by the judge of such district court, and may be heard at any time. District Court; Denial of Parental Visitation Right; Written Finding of Fact. - In any case in which an award of child custody is made in a district court, the trial judge, prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child. Custody and Visitation Rights of Grandparents. - In any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to G.S. 50-13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate. As used in this subsection, "grandparent" includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights. History (1858-9, c. 53, s. 2; 1871-2, c. 193, ss. 39, 46; Code, ss. 1292, 1296, 1570, 1662; Rev., ss. 1567, 1570, 1854; 1919, c. 24; C.S., ss. 1664, 1667, 2242; 1921, c. 13; 1923, c. 52; 1939, c. 115; 1941, c. 120; 1943, c. 194; 1949, c. 1010; 1951, c. 893, s. 3; 1953, cc. 813, 925; 1955, cc. 814, 1189; 1957, c. 545; 1965, c. 310, s. 2; 1967, c. 1153, s. 2; 1971, c. 1185, s. 24; 1973, c. 751; 1979, c. 110, s. 12; c. 563; c. 709, s. 3; 1981, c. 735, s. 3; 1983, c. 587; 1985, c. 575, s. 4; 1987 (Reg. Sess., 1988), c. 893, s. 3.1; 1999-223, ss. 11, 12; 2017-22, s. 2.) Cross References. - As to actions for custody, see also G.S. 50-13.1 through 50-13.3 and notes thereunder. As to actions for support, see also G.S. 50-13.4 and notes thereunder. As to maintenance of certain actions as independent actions, see G.S. 50-19 . For the Uniform Child Custody Jurisdiction Act, see G.S. 50A-1 et seq. Editor's Note. - Session Laws 2017-22, s. 4, made the last sentence of subdivision (d)(3) of this section, as added by Session Laws 2017-22, s. 2, effective October 1, 2017, and applicable to orders for temporary custody on or after that date. Effect of Amendments. - Session Laws 2017-22, s. 2, added the last sentence of subdivision (d)(3). For effective date and applicability, see editor's note. Legal Periodicals. - For note on jurisdictional and full faith and credit requirements of custody awards of minor children, see 30 N.C.L. Rev. 282 (1952). For note on the domicile rule in custody proceedings, see 35 N.C.L. Rev. 83 (1956). For note on voluntary nonsuit in custody action, see 44 N.C.L. Rev. 1138 (1966). For note on choice of law rules in North Carolina, see 48 N.C.L. Rev. 243 (1970). For survey of 1972 case law on child support and pre-Chapter 48A consent judgments, see 51 N.C.L. Rev. 1091 (1973). For survey of 1976 case law on domestic relations, see 55 N.C.L. Rev. 1018 (1977). For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980). For article, "Equating a Stepparent's Rights and Liabilities vis-a-vis Custody, Visitation and Support upon Dissolution of the Marriage with Those of the Natural Parent - An Equitable Solution to a Growing Dilemma?," see 17 N.C. Cent. L.J. 1 (1988). For an article on recent developments in third-party custody proceedings after Petersen v. Rogers and Price v. Howard, see 76 N.C.L. Rev. 2145 (1998).