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Written by Bill Hunter, Hunter & Hein, Attorneys at Law, PLLC, 04/12/2017
* Please note that the following is a brief overview of a complex legal subject and is not meant to provide legal advice. When involved in a child custody dispute, it is important to consult with a family lawyer in your area who is familiar with your local rules and procedures. If your matter is located in Mecklenburg or Cabarrus counties, our Charlotte child custody lawyers can help. Contact us today at 704-412-1442 to speak to an attorney.
Whether child custody terms are entered through a private agreement between parents, a consent order, or a judicial order after a child custody trial, the resulting agreement or order should include provisions relating to both the physical custody and the legal custody of the minor child involved. Physical custody refers to who the minor child resides with, while legal custody refers to who has decision making authority in relation to the minor child. The most common custody arrangements can be grouped into three main categories: sole custody, primary custody, and joint custody. There are an endless number of potential physical and legal custodial arrangements between parents, and different people and courts may define each slightly differently.
A parent awarded sole physical and legal custody over a minor child has exclusive rights to visitation and decision making authority in relation to the minor child involved. Sole physical custody is somewhat rarely awarded between disputing parents as a court must make findings that a parent is “unfit” prior to ending his or her visitation rights. A parent may be found unfit for a number of different reasons, including excessive alcohol and drug abuse, abuse or neglect of the minor child, abandoning the minor child, or other behavior that puts the minor child at risk of some sort of harm.
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Primary physical custody involves one parent having the majority of the physical time with the minor child while the other parent has limited visitation with the minor child. The most traditional primary physical custody arrangement we see involves the non-primary parent having visitation with the minor child every other weekend, one night a week for a few hours, rotating holidays, and additional time during summer breaks. Primary physical custody may also involve the non-custodial parent having only supervised visitation with the minor child (again here, typically when a parent is found to be “unfit” for some reason).
Primary legal custody typically gives the primary custodial parent final decision making authority as it relates to the minor child, but may require that parent to make a good faith effort to work with the other parent when making major decisions.
The NC Child Support Guidelines define joint physical custody in relation to its child support calculators in part as each parent having 123 or more overnights per year with the minor child. There is a growing trend across the United States towards mandating 50/50 joint custody as the starting point in child custody determinations. North Carolina is not one of the states that requires a rebuttable 50/50 presumption, but we think the change is not far off. Joint child custody arrangements can be as unique as the parties agree to or the judge sees fit, and may be catered to accommodate a number of variables including the age of the child, the schedules of the parents, and the locations of the parties involved. We have seen a number of different joint child custody arrangements over the years, a few of the most common being:
1. Parent A has custody Monday – Sunday of Week 1, Parent B has custody Monday – Sunday of Week 2.
2. Parent A has custody of the minor child Monday, Tuesday, Friday, Saturday, and Sunday of Week 1 and Wednesday and Thursday of Week 2, while Parent B has custody of the minor child Wednesday and Thursday of Week 1, and Monday, Tuesday, Friday, Saturday, and Sunday of Week 2.
3. Parent A has custody Monday-Thursday, Parent B has Custody Friday-Sunday every week.
In joint custody scenarios, it is also common to see rotating holiday visitation schedules where the parents switch who gets the minor child on major holidays and school breaks each year. Summers are also usually specifically addressed with each party getting a set number of non-consecutive weeks for family vacations / etc.
Joint legal custody provides each party with equal decision making authority in relation to the minor child, but can get sticky when parents are unable to reach an agreement. In such scenarios, a tie breaking provision may be used, or the agreement may call for arbitration/mediation to break the tie. A court may award parties joint physical custody yet still name one party as having primary or sole legal custody to avoid potential impasses.
We can help.
Have questions or need help with a child custody matter based in Mecklenburg or Cabarrus counties, including the cities of Charlotte, Concord, Harrisburg, Mint Hill, Matthews, Davidson, Huntersville, Davidson, and Kannapolis? Our Charlotte based child custody lawyers are prepared to help with all aspects of child custody disputes, including: drafting agreements and consent orders; assisting with child custody negotiations; filing complaints, motions, and other pleadings; and litigating child custody matters in court. Call us today at 704-412-1442 to speak to one of our attorneys, or complete the contact form on this page and one of our child custody lawyers will contact you shortly.