Child Custody Labels
There are many parenting labels including visitation, joint custody, sole custody, physical custody and legal custody. Our state statute doesn’t help much. It probably creates more confusion. NC Gen. Stat. §50-13.1(a) states: Unless a contrary intent is clear, the word “custody” shall be deemed to include custody or visitation or both.” However, our case law and the NC Child Support Guidelines do give us more details about those labels. Until a child reaches the age of 18, either parent has the right to file motions asking the court to address any serious dispute, which usually is done by a motion to modify the custody order. While I have tried to avoid legalese, some of it is inevitable.
Legal custody is decision-making custody, the right to make significant long-term decisions that impact a child’s life and welfare, such as a child’s education, health, medical care, discipline, and religious training, to name a few. Contrast that with physical custody, the day-to-day decision-making such as what bed-time is best or how long a child may spend on social media on a school night. The trend these days is to award joint legal custody to parents, meaning that both parents equally share the decision-making. On occasion, a judge will award sole legal custody to one parent with the expectation that he or she must discuss the issue with the other parent. If the parents still don’t agree, the parent with sole legal custody makes the final decision. Although it is rare, the court does have the authority to award split joint legal custody. Although both parents can share important decisions, split custody reduces one parent’s decision-making about one specific subject. For example, a parent with joint legal custody might be excluded from decisions about whether counseling is appropriate, and if so, who will provide counseling services.
Physical custody is the physical care and supervision of a child, “possession” for lack of a better term. Physical custody involves the day-to-day decision-making such as what bed-time is best or how much time a child may spend using social media on a school night. The NC Child Support Guidelines identify primary physical custody as the custody a parent has when he or she spends 243 overnight visits per year with that child. The other parent has secondary physical custody because he or she has 122 or fewer overnights per year. In that case, child support is the same amount no matter what the custody schedule is. But if a parent has 123 or more overnight visits per year, a different calculation is used.
Visitation with a child involves contact with him or her. The law in our state fails to clearly define visitation, stating that: Unless a contrary intent is clear, the word custody shall be deemed to include custody or visitation or both. The Court of Appeals wrote that “Visitation privileges are but a lesser degree of custody. Thus . . . the word custody . . . was intended to encompass visitation rights as well as general custody.” Davis v. Davis, 229 NC App. 494 (2013). But the law does specify who cannot have visitation. If a person conceived a child by acts of various sexual assault laws, he is not entitled to visitation rights. On the other hand, grandparents may file a case visitation, not custody of any sort. However, they may seek visitation only if there is an on-going custody battle already pending in court.
What About Technology?
Judges in North Carolina may award “electronic communication” with a parent. To allow a fluid and meaning as technology changes, the law envisions “contact, other than face-to-face contact, facilitated by electronic means, such as by telephone, electronic mail, instant messaging, video teleconferencing, wired or wireless technologies by Internet, or other medium of communication.” However, the statute is quick to add that these communications “may be used to supplement visitation . . . but . . . may not be used as a replacement or substitution for custody or visitation.” Judges sometimes order parents to use Our Family Wizard, which helps parents communicate more easily.Print This Page