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What Do All Those Custody Labels Really Mean?

Physical Custody

By Amy A. Edwards 

See also – Legal Custody

Physical Custody

In this article, we focus on physical custody and visitation.Our state deems physical custody to mean “the physical care and supervision of a child.” NC Gen. Stat. §50A-102(14). The NC Child Support Guidelines identify primary physical custody as the custody a parent has when he or she spends 243 overnight visits per year with that child. The other parent has secondary physical custody because he or she has 122 or fewer overnights. In that case, child support is the same amount no matter what the custody schedule is. But if a parent has 123 or more overnight visits per year, a different calculation is used. Depending on the exact number of overnights per year, the child support obligation changes on a per-day basis.

Physical or Legal Custody?

The Guidelines are careful to note that primary physical custody is determined without regard to whether a parent has primary, shared, or joint legal custody (decision-making custody), which is the right to make significant long-term decisions, such as a child’s religious training or the school a child will attend. Contrast that with physical custody, which involves the day-to-day decision-making such as what bed-time is best or how much time a child may spend using social media on a school night.

Visitation With a Child

Our state fails to clearly define visitation, stating that: Unless a contrary intent is clear, the word custody shall be deemed to include custody or visitation or both. The Court of Appeals wrote that “Visitation privileges are but a lesser degree of custody. Thus . . . the word custody . . . was intended to encompass visitation rights as well as general custody.” NC Gen. Stat. § 50-13.2(b1)

But the statute specifies who cannot have visitation. If a person conceived a child by acts of various sexual assault laws, he is not entitled to visitation rights. On the other hand, grandparents may file a case visitation, not custody of any sort. However, they may seek visitation only if there is an on-going custody battle already pending in court. This avoids the significant stress and cost of litigation which could otherwise be inflicted upon the parents by a third party.

What About Technology? 

Judges in North Carolina may award “electronic communication” with a parent. To allow a fluid and meaning as technology changes, the law envisions “contact, other than face-to-face contact, facilitated by electronic means, such as by telephone, electronic mail, instant messaging, video teleconferencing, wired or wireless technologies by Internet, or other medium of communication.” However, the statute is quick to add that these communications “may be used to supplement visitation . . . but . . . may not be used as a replacement or substitution for custody or visitation.”

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. www.AmyEdwardsFamilyLaw.com© 2018.

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