Navigating custody during and after a divorce can be complicated, even if you and your soon-to-be ex-spouse have a civil relationship. Should divorcing parents pursue joint custody, shared custody, sole custody, or some other option? What are your rights as a parent in this situation?
Read on to learn more about the different types of custody under North Carolina law, some factors the court will consider in awarding custody, and why it’s so important to consult an experienced divorce attorney when seeking custody of a minor child.
What Are the Different Types of Custody?
The term “custody” can refer to physical custody, legal custody, or both. These types of custody have very different legal meanings and practical effects, and it’s important to understand the difference when you’re petitioning for custody of a child.
Physical custody refers to the physical care of a child—where the child lives and who physically takes care of the child. Parents with joint or shared physical custody will each have the child for a specified amount of time during the week; during this time, the child is either at school/daycare or at home with the parent.
Legal custody refers to the ability to make legal and medical decisions about the child’s short- and long-term future. If the parent shares joint legal custody, this means they’ll need to come to an agreement on major decisions like where the child should go to school, what religious education the child will receive (if any), whether and when the child is vaccinated, and what extracurricular activities the child will participate in.
In some cases, parents may share both legal and physical custody. In other situations, parents may share legal custody while only one parent has primary physical custody or vice versa.
Joint Physical Custody or Shared Custody
Shared custody is the same as joint physical custody and generally refers to a situation in which the parties each have more than 124 overnights a year with the child. In a shared custody arrangement, both parents are provided with the opportunity to spend a significant amount of time with their child, from 1/3 of the overnights in a year for one parent to one-half for each.
Child support in a joint physical custody situation is determined by the income of the parties, the costs of daycare, and health insurance calculated using NC guidelines Worksheet B. The amount of child support will vary with the exact number of overnights each parent has in a year.
Joint Legal Custody
Joint legal custody is generally the term used to refer to an arrangement that requires the parents to agree on major decisions for their child.
If a custody hearing is contested—that is, if the parents disagree on who should have primary custody of the child or children—the judge may award sole legal custody to one parent. This is because parents who can’t agree on who should have custody are also unlikely to agree on joint decisions for their child, which can make exercising joint legal custody a challenge.
However, it is just as likely that a judge will order the parents to share joint legal custody to force the parties to co-parent their child and to discourage the primary physical custodian from abusing their position.
The only situation where the guidelines have neither parent paying support to the other is in the infinitesimally small chance where the parents’ income is identical, the overnights are equal, and one parent pays for day care and the other for health insurance and they are the same too!
Sole vs Shared vs Joint Custody
There are in fact legal no definitions for sole, shared, or joint custody. These terms are used by laypeople to describe a general situation where the parents have physical custody. The words “sole,” “shared,” and “joint” describe the agreement that the parties have agreed to or that the judge has ordered.
Sole custody in layman’s terms usually means that one parent has limited time with the child (usually less than the 123 overnights required for joint physical custody).For example, one parent might get what they call “sole custody,” but the other parent still sees the child every other weekend.
Having “sole” custody will entitle the custodial parent to child support based on Worksheet A of the support guidelines.
Factors Considered When Awarding Custody
Child custody decisions aren’t based on what’s best (or most convenient) for the parents, but what’s best for the child. Courts generally consider a few factors when making a best-interest determination, including but not limited to:
- Which parent has been the primary caretaker prior to and since the parties’ separation
- The parents’ and child’s living arrangements
- The parents’ employment situations (looking at overnight travel or 3rd shift hours)
- History of co-parenting with the other parent (or not)
- Disciplinary style and effectiveness
- Any other factors that could affect the child’s health and happiness
These decisions aren’t made in a vacuum; a best-interest determination may be reversed or revisited if the situation changes—if, for example, one parent needs to move out of state, or one parent has a home in a more desirable school district.
It is rare that a young child gets to state his or her preference as to which parent they live with. North Carolina judges have been trained to not ask that question, as it leaves the child with a feeling of having all the power. Rather, a child of suitable intellect and expression, usually around 12 years of age, may be questioned about certain issues from which the judge can determine the child’s preferences and where the child might be better off. This includes questions like:
- Who helps you with homework?
- Who do you talk to when you have a problem?
- What do you do on the weekends with your mother? With your father?
Temporary vs. Permanent Custody Orders
Child custody orders can be temporary or permanent.
Temporary orders are often issued early in a divorce or custody case on limited evidence and can help preserve the status quo while the parties attempt to settle custody or prepare for a much longer trial.
After a final trial, the court will issue a “permanent “custody order (which may or may not be the same as the temporary order). It’s important to note that permanent custody is really not permanent, as custody is always an issue as long as a child is a minor.
If you’re unhappy with a custody order that has been issued in your case, you may have the right to appeal. However, it’s crucial to seek legal advice, as the rules of procedure on appeal can be complex and difficult for those who don’t have courtroom experience. Furthermore, the threshold of evidence needed to overturn a court order is generally an abuse of discretion, and that is high burden.
Custody vs. Visitation
Custody and visitation are often used interchangeably, but these terms can be different. Custody may refer to the ability to make decisions on your child’s behalf, while visitation can be granted without conveying any legal rights, although legal rights are generally given jointly.
On the other hand, North Carolina courts have determined that “visitation is a lesser form of custody.” In some states, including North Carolina, grandparents may be able to seek visitation of their grandchildren under certain circumstances.
Neither custody nor visitation can be conditioned on paying child support. In other words, just because a parent is behind on their court-ordered child support doesn’t mean that the other parent can withhold visitation or custody time. Likewise, just because a party is not allowing visitation, the payor of child support cannot stop paying the support. These two issues are treated separately by the court.
Contact a North Carolina Family Law Attorney
Although North Carolina law doesn’t require parents to be represented by an attorney in family court, child custody cases can often be more complex than they may first appear. It’s important to seek advice from an experienced family law attorney before you pursue custody; having counsel in your corner can ensure that the trial court considers all relevant evidence when making a custody decision. Your attorney can also help you determine whether it makes sense to appeal the trial court’s ruling if you’re unhappy with it.