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.