Legal vs Physical Custody in NC

Legal Custody involves decision making authority whereas physical custody refers to where the child lives. By default in North Carolina there is shared joint legal custody between legal parents. Who the child lives with most of the time may essentially be exercising physical custody, but without a court order it is not legally enforceable. So what exactly are the consequences of having either legal or physical custody when it comes to children in NC?

Why Custody matters

​Custody determines the rights of each parent. Do you want the child to live with you full time or are you only looking for visitation? Do you want to have a say in where the child attends school or church? Do you want to make major medical decisions or are you open to compromising with the other parent? Remember that just because you get along now does not mean you will in the future. There is no right or wrong answer to child custody, but remember Court Orders are not necessarily easy to change and if there is no Court Order getting in front of a Judge can take months.

Different types of Legal Custody in NC

• Sole Legal Custody
• Primary Legal Custody
• Joint Legal Custody with final decision making authority
• Joint Legal Custody
• Secondary Legal Custody

Different types of Physical Custody in NC

• Sole Physical Custody
• Primary Physical Custody
• Joint Physical Custody
• Secondary Physical Custody
• Visitation Rights (not really a form of custody)

Do I want Legal Custody or Physical Custody?

​There is a lot of confusion as to how to proceed when parents split up. Are you looking to have total decision making authority or are you open to co-parenting with the other parent? The answer to this question may depend on how you get along with the other parent and if you trust their motivation regarding the minor child. Do you place importance on the child having the stability of one home or do you think spending equal time with each parent is most important- not even Judges agree on what is in the best interest of a child.

When you need sole custody

​If the other parent is simply unfit as a parent then you should consider a Court action for sole legal and physical custody. This ensures the minor child lives primarily with you and you make all major decisions. Sole custody does not mean the other parent is not entitled to visitation and communication regarding the minor child. If the other party has substance abuse or anger issues then supervised visitation or no visitation at all may be appropriate to protect the minor child.

When joint custody works

​If both parents have been active in the child’s life since birth then perhaps a week on/week off schedule is best suited to maintain the status quo. Trying to make the children decide by involving them in Court matters is never a good idea. That being said joint custody works best when both parents can co-parent together by communicating and making decisions in the best interest of the child. Joint legal custody may also prevent one parent from moving out of state with a child over the objection of the other.

Do I need a Court Order?

​If you are worried about the other parent refusing to return a minor child after visitation then a Court Order is imperative! As mentioned above NC has joint legal custody by default, so you can’t expect police intervention on your report the other parent has refused to return or kidnapped the child. The police will likely inform you it is a civil matter and you need to file a Court action. Getting in front of a Judge can often take months absent limited criteria to seek an ex parte emergency order.

When no Court Order is required

​If you and the other parent have a great relationship and can generally communicate and compromise regarding the needs and best interest of your children then a Court Order may be unnecessary. Many parents are able to work out a custody or visitation schedule either formally or informally. This could be accomplished in either a Separation Agreement or Parenting Plan that is never filed with the Court.

Does NC award joint custody?

Joint legal custody is often awarded to both parents if both parents appear to be responsible enough to make decisions and can communicate with each other to reach decisions. If the parties can’t communicate then Judges are reluctant to Order them to do so when there is little prospect of compromise or agreement. In those cases a Judge may award Joint Legal Custody, but give one parent final decision making authority. It is important to note that joint custody does not necessarily mean 50/50 custody in NC. If one parent is not fit to make decisions for a minor child, has shown little interest in doing so, or lives far away then one parent may be awarded primary or sole legal custody.