Physical vs Legal Custody in North Carolina

Child Legal Custody


Divorces can be, and often are, difficult. It is a stressful time for everyone involved – the husband, wife, and sometimes, the children. With all the other issues that go along with divorce, one of the most contentious can be the legal custody of children – who gets the kids? No parent wants to be told that they are a bad parent, or that they will not have their children live with them.

While the best interest of the child is the ultimate determination, there are a lot of factors that go into making a decision about who will be getting custody. But what does it mean to have custody? Generally speaking, there are two types of custody – physical custody and legal custody.

Physical Custody

Physical custody is defined in North Carolina as the “physical care of and control over an individual.”1 Physical custody therefore refers to who the child actually lives with. Through custody laws, The court has the ability to allow physical custody to be awarded one parent (sole physical custody) or both parents (joint physical custody). In a (full) custody situation, typically the child will live primarily with one parent with the other parent having some form of visitation. The typical shared physical custody arrangement involves the parents splitting the custodial time with the child nearly equally. This can be done in a number of ways, but most often results when each parent has the child in their custody an equal amount of time.

Legal Custody

A Legal custody agreement encompasses much more than just where the child is living. There are a lot more duties and rights that go together with the grant of legal custody. This includes the “right and responsibility to make decisions with important and long-term implications for a child’s best interest and welfare.”2 These include decisions regarding education, health care, religious training, social interactions, and the like.3 Essentially, the award of legal custody gives the parent(s) the authority to make all of the decisions that will impact the child’s life.

Just like physical custody, legal custody can be awarded solely (to one parent), or jointly (between the parents). If just one parent is granted full legal custody, that parent has all of the authority to make the important decisions for the child.4 However, in an award of shared joint custody, both parents have the authority to make this decision. This is usually accomplished by asking that the parents attempt to reach an agreement about such a decision, and if they cannot, one parent may be given “decision-making authority.” This authority is the equivalent of the final say – in the event of an impasse, the parent with decision-making authority gets the final say. North Carolina courts are given broad discretion in how they fashion the specific terms of a joint legal custody agreement.5 This allows the courts to determine if one parent gets decision-making authority on one particular issue, perhaps education, and that parent’s wishes for the child’s education trump the other parent’s.6

Most custody orders will determine whether there is full physical and/or legal custody, or shared physical and/or legal custody, or some combination of those. In the event the court grants joint legal custody, there may be a provision granting one parent more decision-making authority, as to one issue or on all issues. The best interests of the child will be the most important determination in making that decision.

The Law Firm of Marcellino & Tyson, PLLC.

If you are going through a child custody dispute, you need experienced attorneys that know and understand North Carolina’s child custody laws. The family law attorneys at Marcellino & Tyson, PLLC have extensive experience handling child custody cases in Mecklenburg County, Cabarrus County, Gaston County, Union County, Catawba County, and Rowan County. Call our office at 704.919.1519 to schedule a confidential consultation with one of our knowledgeable family law attorneys.

1. N.C.G.S. § 48-101(12) (2011).
2. Diehl v. Diehl, 177 N.C. App. 642, 646, 630 S.E.2d 25, 27 (2006).
3. Patterson v. Taylor, 140 N.C. App. 91, 96, 535 S.E.2d 374, 378 (2000).
4. Reynolds, S. Lee’s North Carolina Family Law § 13.2b, at 13-16.
5. Patterson, 140 N.C. App. at 96, 535 S.E.2d at 378.
6. MacLagan v. Klein, 123 N.C. App. 557, 565, 473 S.E.2d 778, 784 (1996), overruled on other grounds by Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998).

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