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Introduction to Custody

Marcellino & Tyson
Marcellino & Tyson June 30th, 2023

father hugging daughter charlotte nc

Written by Danielle Walle.


Future installments will outline options in greater depth and detail.

Sometimes, it is clear that the best thing for a family is for the parents to separate and no longer remain together. Often this is a decision neither parent planned to make so they have little plans on what it may look like to go from seeing and being with your children every day to splitting time between you and the other parent. While such a decision is never easy, the good news is that there are many options that you can craft to best serve you and your family.

First, to introduce some terms:

Custody: The right to make major decisions about a child and the right to have the children in your care.

Legal Custody: The right to make major decisions about a child. Major decisions typically mean the religion of a child, where a child attends school, what extra-curricular (non-grade related) activities children participate in, and what major medical decisions may be (surgeries, vaccines, and other non-emergency procedures).

Physical Custody: The right to have the child in your physical care.

Joint/Shared Custody: Although there is no definition in the law for these terms, they usually mean that two parties divide decision making and physical time between each other.

Sole custody: Again, this is not defined by the law, but it usually means that only one party has the right to make decisions and/or have the child in their physical care.

Second, there are many ways to create a custodial arrangement, or parenting plan. (One consideration in working on hard topics is the word choice – often, using terms like “parenting time” over “visitation,” is more successful as it acknowledges that both parties are the parents and both parents are of equal importance, regardless of the time they spend with the children.) Contrary to popular belief, North Carolina courts default to parents having 50/50 custody. Neither mothers nor fathers are assumed to be better situated to parent. A court may decide, after hearing evidence and argument, that 50/50 is not best for a particular child or family, but a court does not start at that point.

So if the default is 50/50 custody, what does that look like? Generally, for physical custody, it means that for every day a child spends with one parent, they spend a day with the other. Sometimes, that’s on a rotating week to week basis, but sometimes it is on a shorter basis (day to day) or longer basis (two weeks or more). For legal custody, it means that the parents must consult together and agree on major decisions for the minor children.

On the other end of the spectrum is sole custody, which is exceedingly rare. In part, this is because the Supreme Court of the United States has consistently ruled that parents have a constitutionally protected interest in the care, custody, and decision making of their children. Parents also tend to believe that their children will benefit from having two parents involved. Additionally, parenting is difficult and even more difficult to do alone. However, sometimes it really is not best for a child to have both parents involved in every aspect of their life. Often, this is because of mental illness, criminal behaviors, or drug addiction. It could also be because one parent has exhibited an inability to meet a child’s needs. In those instances, it is not uncommon for parties to try therapy and other assistance to help parents and estranged children reconnect.

Between 50/50 custody and sole custody are infinite options. If parents live very far away from one another, one parent may have the child for the school year and the other parent may have them for holidays and the summer. In the interest of stability for the children, if one parent has a job that requires they be on call or away for significant periods of time (i.e., a pilot or traveling nurse), a child may see that parent every-other-weekend. Sometimes, one parent has a significantly stronger bond with the children and the children simply thrive better when with that parent.

Whatever the parenting plan may be, it is important to remember that it is not set in stone. What is good for a child who is two and whose parents live 4 miles from one another may not be good for that same child at 8 when the parents live 40 miles from one another.

What is good for a family who has three children between 2 and 9 may not be good for a family with 4-year-old triplets. There are many factors that a parenting plan must accommodate, which is why there are so many different options available for parents trying to decide what to do