When it comes to determining
child custody, there are so many factors to consider and decisions to be made. The child
custody process in North Carolina can often be a confusing one for parents,
as statutory law does not well define all of the many facets of custody.
In a custody matter, parents are given some type of "legal custody"
and "physical custody" over the minor child or children. “Legal
custody” and “physical custody” in the technical sense
describe two different aspects of custodial rights that the parents might
share or, alternatively, could be granted to only one of the parents though
a custody agreement or custody court order.
“Physical custody" means that a parent has the right to exercise
actual, physical custody over the child and to have him or her live with
that parent. Some states will award joint physical custody when the child
spends significant amounts of time with both parents. "Legal custody"
of a child means having the right and the obligation to make decisions
about a child’s upbringing. For example, a parent with legal custody
can make major decisions about the child’s schooling, religious
upbringing and medical care.
In North Carolina, Courts will determine custody based on what is in the
"best interests of the child." Although the best interests standard
can be hard to define in many situations, some of the most common factors
considered in this analysis by the Courts are: the wishes of the child
(depending on the child's age and maturity), mental and physical health
of the parents, the specific or special needs of the child, religious
or cultural considerations, the need for a continuously stable environment,
the ability of each parent to provide for the child, etc. It is important
to remember that best interest determinations are generally made by considering
a number of factors related to the child's circumstances and the parent
or caregiver's circumstances and capacity to parent, with the child's
ultimate safety and happiness being the paramount concern.
In North Carolina, it is becoming more and more common for parents to be
granted joint physical and legal custody of a child, meaning that each
parent has equal physical custody time with the child, as well as equal
decision making authority for major decisions affecting the child’s
life. Additionally, there has been a recent trend among North Carolina
Courts, toward ordering "week-on-week-off "custody schedule
for parents who are to share joint physical custody. In other words, the
child or children will spend one week at one parent's house and one
week at the other parent's house.
Although most courts now prefer to order joint custody, sometimes it is
in the best interest of the child that one parent be granted primary custody
of the child. When one parent is granted primary custody of a child, the
other parent usually is granted visitation privileges with the child.
Except in extraordinary circumstances, it is healthy and often encouraged
for the child to have regular contact with the non-custodial parent.
Not all custody determinations need to be made in the courtroom by a judge.
A Child Custody Consent Order may be entered into by the parties outside
of court instead. A consent order is essentially an agreement between
the parents, i.e., without a trial, in which they state what type of custody
each parent will exercise. In the agreement the parties can address the
type of schedule that will be followed on a day to day basis, as well
as, the schedule that will be observed on holidays and special occasions.
Even if a lawsuit has already been filed, the two parties may come together
to agree and subsequently ask the court to approve their agreement. The
agreement almost always will be approved and therefore becoming a binding
agreement which can be enforced by the court. The form of the custody
determination — strictly agreement or order — may make some
difference. Each is enforced differently and treated differently if a
change in custody or visitation needs to be made in the future.
Child custody is an important and often emotional process when going through
a divorce. If you or a loved one is caught in an ugly custody battle or
just needs some advice,
call Dummit Fradin to speak with one of our experience
Family Law Attorneys.