Types of Custody

Legal custody concerns the right to make major decisions regarding the child’s health, welfare and education. Physical custody addresses with which parent the child will reside. Although “legal custody” is not defined in the North Carolina General Statutes, joint legal custody is construed by the courts to mean that both parents share equally in the making of major decisions regarding the child's health, welfare, and education (such as elective surgery, orthodontia, choice of religion or private schooling). Courts will often hold that both parties should share joint legal custody of the minor child unless it is shown that they cannot cooperate. In a joint physical custody situation, the custody of the child is alternated on some regular basis between the parents. If the parents have roughly the same amount of time with the child each year, this is considered a “shared custody” arrangement. If one parent has substantially more time with the child than the other, that parent is considered to have, “primary physical custody” of the minor child. While joint legal custody provides that the parents share joint decision-making regarding major decisions for the children’s education, health care, religious training, and general welfare, the parent who has physical custody of the child has the right and responsibility to make routine, day-to-day decisions for the child.

Standards for Custody

In any custody determination, the best interest of the child is the polar star by which the Court is guided. In re Peal, 305 N.C. 640, 645, 290 S.E. 2d 664, 667 (1982). The judge is obligated by law to award custody “as will best promote the interest and welfare of the child.” See N.C. Gen. Stat. § 50-13.2(a) and (b). Financial earning capacity is not a determinative factor in awarding legal or physical custody of a minor child to either parent. Courts often look to preserve the status quo, and in this regard, it is relevant if one party was the primary caretaker of the minor child throughout the marriage or relationship of the parties.

There are many different variations of shared custodial schedules. Parents who live reasonably close to each other with older children usually prefer to operate under a week-on/week-off physical custodial schedule to minimize the transitions for the children. Often, when children are younger, it is not in their best interests to be away from either parent for a full week at a time, and thus parents will opt for either a 2-2-3 or a 2-2-5 physical custodial schedule. Examples of these schedules are set forth below.

2-2-3 Schedule

Since this schedule includes a large number of transitions each week, it is usually only appropriate when the children are quite young and it may not be in their best interests to spend more than 3 consecutive days away from either parent.

Monday	Tuesday	Wednesday	Thursday	Friday	Saturday	Sunday
Mom	Mom	Dad	Dad	Mom	Mom	Mom
Dad	Dad	Mom	Mom	Dad	Dad	Dad
Mom	Mom	Dad	Dad	Mom	Mom	Mom
Dad	Dad	Mom	Mom	Dad	Dad	Dad

2-2-5 Schedule

This schedule is appropriate when children are too old to make the number of transitions in a 2-2-3 schedule, but still too young to transition to a full week-on/week-off schedule. One advantage of a 2-2-5 schedule is that both parents know which weekdays they will have physical custody of the children, and so as the children get older the parents can plan extracurricular activities accordingly.

Monday	Tuesday	Wednesday	Thursday	Friday	Saturday	Sunday
Mom	Mom	Dad	Dad	Mom	Mom	Mom
Mom	Mom	Dad	Dad	Dad	Dad	Dad
Mom	Mom	Dad	Dad	Mom	Mom	Mom
Mom	Mom	Dad	Dad	Dad	Dad	Dad

 

A servicemember is not disqualified as a proper physical custodian of a minor child, even if that servicemember has to leave the country for deployment. Such a situation, however, does place a heavy burden on the custody claimant to prove that his or her military duties will not interfere unnecessarily with his or her custodial role. Detailed testimony is usually needed to assure the Court that military readiness and one's professional duties are not inconsistent with the caregiver role of the custodian.

Visitation Options

As with custody, visitation comes in the form of two options -- open or structured. Open visitation allows reasonable, liberal, and flexible visitation rights by mutual consent of the parties, and is seldom chosen by contesting parents. It is often advisable to have a set visitation schedule for parties to fall back on as a default in the event they cannot mutually agree on an open visitation schedule.

Structured visitation attempts to set out a basic minimum of visitation schedule for the non-custodial parent. Such a provision in an order or a separation agreement might set visitation for a nearby non-custodial parent as follows:

A. Every other weekend from the close of school on Friday until the return to school on the following Monday.

B. Every other year, from the close of school for the winter holiday until December 26^th, and on alternating years, from December 26^th until the return to school following the winter holiday.

C. Alternating Thanksgiving and Christmas holidays.

D. Four weeks in the summer, either consecutive or non-consecutive, if notice is given to the custodial parent not later than April 1.

E. Father's Day or Mother’s Day of each year regardless of whether it is his or her regularly scheduled weekend or not.

A more extensive schedule might go on for several pages, containing provisions for "make-up" days, visitation by the mother in the middle of dad's summer visitation with the child, and other matters.

Many non-custodial parents ask about child support during summer visitation. Child support is usually determined based on the number of overnights each parent has with the child throughout the entire year, so the non-custodial parent’s summer custodial time is already factored into his or her child support calculation, and these payments must continue even while the payor has physical custody of the child for the summer vacation.

Pick Up And Return Problems

Another question that arises frequently is the issue of travel expenses. Visitation is considered a privilege of the non-custodial parent, even if it carries with it a financial cost. The cost and making of travel arrangements is almost always the responsibility of the non-custodial parent, at least at the initial separation of the parties. If, however, the primary custodian moves a significant distance away from the non-custodial parent, the court may be more open to allowing visitation or making an adjustment to child support.

Right of First Refusal

Parents sometimes opt to have a right of first refusal included in their custody agreements. A right of first refusal clause provides that, in the event either party requires childcare for more than a certain designated period of time, that parent must first offer the time to the other parent before arranging for a third party to provide childcare.

Miscellaneous Issues and Visitation

Each parent should keep the other parent notified as to the whereabouts of the minor child, and the non-custodial parent should always have the ability to contact the minor child. The non-custodial parent and the minor child should be able to communicate electronically with each other at all reasonable and age-appropriate times. Both parents should also have equal access to school progress reports, report cards and medical reports related to the minor child. This is also set forth by statute in G.S. 50-13.2. Further, both parents should have direct access to the children’s doctors, dentists, teachers, and any other individual directly related to the well-being of the minor child.

At least at the initial separation of the partner. If, however, the primary custodian moves a significant distance away from the non-custodian partner, the court may be more open to allowing visits or making a suitable adjustment to child support.

Some settlements may state that neither party shall disparage the other parent or the other parent’s family members in the presence or hearing of the minor child, and that the parents shall work together in good faith to make decisions towards the best interests of the minor child.

Resources

N.C. Gen. Stat. § 50-13.2

In re Peal, 305 N.C. 640, 290 S.E. 2d 664 (1982).

* * *

The CO‑COUNSEL BULLETIN, a series of information papers for military legal assistance attorneys and JAG officers in North Carolina, as well as civilian lawyers, is a product of the NC State Bar's Standing Committee on Legal Assistance for Military Personnel (LAMP). For comments or corrections, contact LAMP Committee member Mark E. Sullivan, 919‑832‑8507, or at Mark.Sullivan@ncfamilylaw.com