It’s not automatic, but you may be able to get full legal custody, depending on how long your ex has been absent and the reason for that absence. The first step is to consult with an attorney who knows how the system works.
The difference between legal and physical custody
In North Carolina, legal custody refers to each parent’s right to make consequential decisions for the children, such as decisions about their medical care, education or religious upbringing. It’s quite common for parents to share legal custody, meaning that each parent has full authority to make such decisions with the understanding that they should discuss the decision with the other parent. In some cases, when it is in the children’s best interest, one parent may be given sole legal custody.
Parents who have gone through divorce or a paternity hearing generally also have the right to physical custody of their children. Physical custody is the right to have your child in your care, at least part of the time. It’s common for parents to share physical custody, meaning that each parent spends some time with the child.
However, some parents have limited physical custody (or “visitation”) rights. If there has been domestic violence, child abuse, drug or alcohol addiction or a severe mental illness that puts the child in danger, the court could order that parent’s visitation to be supervised by a third party or even denied altogether. These decisions are to be made in the children’s best interest.
If you have been given shared (or “joint”) legal or physical custody by a court, you are required to comply with the order. However, part of that order is to for you put the kids into your ex’s custody on a routine basis. What happens when your ex disappears?
Seeking sole custody from an absent co-parent
When your ex simply abandons their responsibilities for no good reason, you have grounds to file for a modification of your child custody order. Generally, you can file for a modification whenever circumstances have substantially changed, and those changes are affecting your rights or your children.
Whether you will receive the modification you want depends on whether the court decides it is in your children’s best interest. That means your lawyer will have to make an argument why the custody order should change and what those changes should be.
This will depend in large part on why your ex is missing. For example, if your ex simply left the area and gave you no forwarding address, you would have a pretty strong argument for sole custody. On the other hand, if your ex is a military service member who was deployed, you generally would not be able to change your custody order for that reason alone.
There can be complex issues in child custody cases, especially when one parent appears to have abandoned their children. It’s crucial to work with a compassionate attorney who will go the extra mile to help you get the changes to your custody order that you need.