Maginnis Howard no longer practices family law. We currently work personal injury cases, consumer cases relating to credit or harassing phone calls, and wage and hour/employment cases.
North Carolina recognizes two primary types of custody: legal custody and physical custody. Legal custody gives a parent the right to make major decisions regarding the needs of the child such as education, health care and religion. The child does not have to live with the parent or person who has legal custody. Two people may have joint legal custody (“joint legal custody”) or one person can have all the responsibility (“primary legal custody”).
Physical custody relates to the person who has actual, physical care of the child. As with legal custody, two people (“joint physical custody”) or only one person (“primary physical custody”) can be granted physical custody. The parents with joint physical custody share time with the child so each person has regular contact. The parent with primary physical custody has the child in his or her care for the majority of the time. The other parent may still have visitation rights or other contact with the child. In certain situations, both parents may be granted “joint legal and physical custody,” giving both parents equal decision-making abilities with shared physical custody. A parent without primary physical custody is likely entitled to visitation rights.
Child custody can be determined either by consent of both parties or by the court. The determination of child custody is most often settled by consent or through mediation because of the certainty and flexibility the agreement can provide. When custody is contested and determined by a judge, placement will be determined by the “best interests of the child” standard. The judge overseeing the custody dispute has wide discretion and ultimate authority on how the custody arrangement will be determined. The court considers the lives and abilities of both parents in an attempt to place the child in the best possible situation. All relevant factors are considered, including:
- The child’s age;
- The child’s mental and physical health;
- The child’s current education situation;
- The child’s daily pattern;
- Which parent is the primary caregiver;
- The lifestyle and schedule of each parent;
- Acts of domestic violence;
- Prior bad acts of either parent;
- Religious factors;
- Each parent’s ability to provide a stable and loving home;
- The financial situations of both parents; and
- The preference of the child.
Because the judge has ultimate authority and can base the decision on so many different factors, it generally behooves the parties to make the decisions without the court’s involvement. Without a custody document in place (either by agreement or court order), either spouse is at the mercy of the other because each parent has co-equal rights to the physical possession of the child.
Whether you are dealing with a bitterly contested custody dispute or if you and the other party can generally agree on the arrangement, it is important to have an attorney advocate for you. Our firm works closely with the client, school teachers, therapists, pediatricians, and any third party working with the children. Advocacy for the best interest of the child requires deep understanding of the facts and legal issues of North Carolina law.
