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Child Custody & Visitation

The word “custody” can refer to either legal custody or physical custody.

Legal Custody

Legal custody generally means decision-making authority for a child – who gets to make decisions about the child’s health, education, and overall well-being? This applies to the big decisions that must be made for a child. Typically, short-term, day-to-day decision-making will fall to the parent who has physical custody of the child on any given day.

Legal custody is often shared equally by both parents. This is known as “joint legal custody.” However, in certain situations, legal custody may be given solely to one parent (“sole legal custody”), or one parent may have the final say about certain specific issues (“decision making authority”) if the parents can’t agree on that issue.

Physical Custody

Physical custody means where a child lives and spends his or her time. Physical custody can be awarded on a sliding scale – one parent may have primary physical custody with the other parent having less frequent time, the parties may share custody equally (“shared physical custody”), or, in very rare situations, one parent may have exclusive physical custody.

Physical custody arrangements can vary widely – folks often think about “every other weekend” schedules, but there are many others, and you can get creative in crafting a schedule that works for you, your family, and your child.

Visitation

When applied to a parent, the word “visitation” means the same thing as physical custody. However, in limited circumstances, North Carolina law recognizes the visitation rights of third parties like grandparents. For third parties, “visitation” really does mean limited visitation time with a child.

How Resolved

Child custody can be addressed and determined in almost infinite ways in North Carolina. The parties may reach an agreement about custody on their own or through mediation and write their agreement down in a separation agreement or custody agreement, which is a private contract between the parties, or they may put the terms of their custody agreement in a consent order that is then signed by a judge and becomes an order of the court. Agreements and orders vary in enforceability and modifiability, and it is a good idea to discuss the pros and cons of each with a lawyer. If the parties are unable to agree on custody, then custody will be determined by a judge after a trial.

Until there is a formal custody agreement or court order, neither parent has more of a right to legal or physical custody of their child. In essence, the “default” is joint custody until a court order or formal agreement says otherwise. This is true whether or not the child’s parents were ever married to one another.

Termination

Custody orders and agreements all terminate when the child is 18 or becomes emancipated

Emergency Custody

North Carolina recognizes limited circumstances where a party may seek an emergency custody determination. Emergency custody can be awarded on a temporary basis if there is a substantial risk that the child is in physical danger (i.e., physical or sexual abuse) or if there is a substantial risk that the other parent may remove the child from the state for the purpose of evading the jurisdiction of the court. If a judge grants an order for emergency custody, a return hearing is usually scheduled within 10 days. The return hearing usually “feels” like a temporary custody hearing; it tends to be a shorter hearing and usually results in a temporary order.

Third-Party Custody and Visitation

If you are not a parent of the child for whom custody is sought, then you are seeking either grandparent visitation or third-party custody or visitation. The law about who, other than the child’s parents, has the right to seek custody of a child is very specific. Whether or not you are able participate in a lawsuit for custody or visitation as a grandparent or third party will depend on a variety of unique circumstances.

If you are a grandparent, family member, or other third party who is seeking custody or visitation of a child, please contact us to set up an initial consultation to discuss your rights.

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