Child Custody

Child custody is one of the most difficult areas in all of family law. Parents being able to work out custody outside of court often leads to happier results than leaving it up to the discretion of a judge. Most moms love their children. Most dads love their children. The judge who is going to decide the future for those children does not love them. He or she doesn’t know them.

North Carolina’s test for child custody is what is in the “best interests” of the minor child in making a custody determination. Sometimes litigation is absolutely necessary in this area of practice. Some parents cannot work together. They cannot make decisions. They cannot reach an agreement. And, fortunately, for those cases, the court and judges are there to make a decision. Litigation or not, the general concepts and law remain the same.

Physical v. Legal Custody

There are two types of child custody: physical and legal. Physical custody is where the child is physically residing. Legal custody, on the other hand, is who makes the decisions for the child.

There are two types of physical custody: sole and joint.

  1. Sole custody means that one party has physical, exclusive care of the child and the other party has visitation. Visitation means the time that the other party has with the child. The standard visitation schedule that comes to mind is that of an every other weekend schedule. This is by no means a “rule” and many factors can play into whether or not an every other weekend schedule would be in the child’s best interest—the child’s age, school, proximity of the parents from one another, the child’s extracurricular activities, the child’s health, etc.
  2. Joint custody can mean essentially any other arrangement that the parties or the court determines for the best interests of the child. The standard joint custody arrangement that comes to mind is a week-on, week-off arrangement, meaning mom has the child one week, dad has the child the next week. Again, this is by no means the only option and many factors will play into this as well.

Legal custody means either one or both parties have the ability to make significant decisions on the child’s behalf. Such decisions on the child’s education, religious preference, or medical procedures often are categorized in this.

Best Interests Standard

The standard the court uses for determining child custody issues is what is in the “best interests” of the child. Many factors will be considered to determine what will “best promote the interest and welfare of the child.” There is no formula to this and it is often very fact specific. It is very important to raise these issues with the judge and court at the appropriate time to ensure that he or she has all of the information when making his or her decision.

Jurisdiction

The first thing the judge has to do before deciding any child custody issue or sending the parents to mediation is determine whether the court has jurisdiction. North Carolina has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (or “UCCJEA” for short), which is found in N.C.G.S. §50A-204. According to the statute, North Carolina must be the “home state” of the child at the date of filing the lawsuit which, although there are certain exceptions that apply, is going to mean that the child has lived in North Carolina for the past 6 months prior to filing the lawsuit.

At Rech Law, P.C., we can help you understand what these different types of custody mean and help you come to decisions as to what will work best for both you and your family.