What Do All Those Child Custody Labels Really Mean?

(Part 1 of 2) This article focuses on legal custody.

Parents will fight tooth and nail about what kind of custody each of them should have. They are extremely concerned about the term custody. There are many parenting labels including visitation, joint custody, sole custody, physical custody and legal custody. Our state statute doesn’t help much. In fact, it probably creates more confusion. NC Gen. Stat. §50-13.1(a) states: Unless a contrary intent is clear, the word “custody” shall be deemed to include custody or visitation or both.” However, our case law and the NC Child Support Guidelines do give us more details about those labels. I’ve tried to avoid legalese, but some of it is inevitable.

Our Changing Values 

Unlike some states, our state law doesn’t start by assuming that any particular type of custody will exist. But a few years ago, it came just shy of it when the state policy was written to promote “child-centered parenting . . . and encourage . . . court practices that reflect the active and ongoing participation of both parents in the child’s life and contact with both parents when such is in the child’s best interest…” NC Gen. Stat. §50-13.01. This was significant because it wasn’t too many years ago that courts almost automatically gave moms custody of young children. The now debunked law of traditional custody, called the Tender Years Doctrine, assumed young children of tender years should be with their mothers if at all possible. Now, if either parent requests joint custody, the court is legally obligated to consider it. NC Gen. Stat. §50-13.2(a).

Legal Custody (Parenting Decisions)

Legal custody is decision-making custody, the right to make significant long-term decisions that impact a child’s life and welfare, such as a child’s education, health, medical care, discipline, and religious training, to name a few. Contrast that with physical custody, the day-to-day decision-making such as what bed-time is best or how long a child may spend on social media on a school night. There are three types of legal custody.

Joint Legal Custody

The trend these days is to award joint legal custody to parents, meaning that both parents equally share the decision-making. Ironically, when parents share joint custody, neither parent can veto the other, so neither parent really has any more rights to make a decision than the other. But, the system of checks and balances provides some incentive for decent behavior. If one parent acts badly or makes poor decisions, he or she may have to account for it on the witness stand at some future date if the other parent files a motion for the court to intervene and have a judge decide what must be done about the disagreement. 

Sole Legal Custody

On occasion, a judge will award sole legal custody to one parent. If the dispute is about which school a child should attend, for example, the parent with sole legal custody makes the final decision. However, judges usually expect the parent with sole legal custody to discuss the controversy with the other parent. But if they still can’t agree, he or she makes the decision. Until a child reaches the age of 18, either parent has the right to file motions asking the court to address any serious dispute, which usually is done by a motion to modify the custody order.

“Split” Joint Legal Custody

Although it is usually done in unique cases, the court does have the authority to award split joint legal custody. Although both parents can share important decisions, split custody reduces one parent’s decision-making about one specific subject. For example, a parent with joint legal custody might be excluded from decisions about whether counseling is appropriate, and if so, who will provide counseling services. In that event, one party would have primary legal custody, and the other would have secondary legal custody.

See Diehl v. Diehl, 630 S.E.2d 25 (2006) and Hall v. Hall, 188 N.C. App. 527 (2008).   

Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of 2018. ©