A Primer on Child Custody

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For help with family law questions or custody issues, call Lee Allen, Attorney and Certified Family Financial Mediator with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

In today’s world, many fathers live apart from their children.  When the time for separation comes, and sometimes for years after it occurs, many fathers find themselves asking, “When can I see my child?”

The answer depends, in part, on what you and your child’s mother can agree upon.  An agreement allows the parents to be creative, flexible, and to have control in deciding the particulars of each parent’s time with the child.  Once an agreement has been reached, North Carolina law requires it to be in writing and also requires certain formalities to be met.

If the parents cannot agree, one or the other will likely initiate a lawsuit, asking the Judge to decide on the issue of custody, including setting a schedule for each parent to enjoy time with the child.  The result will be comprehensive and will deal with all aspects of the child’s life, including decision-making, access to information, where the child resides, a schedule setting forth times the child sees each parent, how the child spends his or her summers, and how the child spends holiday time.

The Judge will base his or her decision regarding the issue of child custody by determining what is in the child’s best interest.  Therefore, a Judge has a great deal of discretion in reaching a decision.  Typically, the history of parental involvement plays a great role in determining the custodial arrangement.  In addition, judgment, maturity, and the ability and willingness to set aside differences with the other parent in order to do what is right and best for the child will also be factors considered by the Judge.

The term legal custody generally refers to the authority and responsibility to make major, important decisions for the child, such as medical/dental care and education.  It is not unusual for both parents to be awarded joint legal custody, with one parent having primary physical custody of the child.

Primary physical custody refers to the rights and responsibilities of the parent with whom the child primarily resides.  This obviously includes a good deal of decision-making with regard to the more mundane, everyday decisions.

Visitation refers to the right of a parent to spend time with the child.  This is sometimes referred to as secondary physical custody.

In making a custody determination, the Judge will generally provide for each parent to have certain times with the child during summer vacation.  This is to allow each parent the opportunity for vacations, time with grandparents, etc.  This can be done by allowing each parent uninterrupted blocks of time.  The Judge will also provide for a holiday schedule, typically focusing on Thanksgiving, Christmas, and Easter/Spring Break.  From time to time, a Judge may include other holidays such as Labor Day, Martin Luther King Day, Memorial Day, and Fourth of July.  Generally speaking, parents share holiday time equally.  This can involve splitting up particular holidays from year to year, or as is most often the case, a mix of the two.  Generally, Christmas is divided in half and the parties will alternate those halves from year to year.  In other words, the parent having the first half of the Christmas holiday in 2016 would have the second half of the holiday in 2017.  Sometimes Judges will split the other holidays, and sometimes they will just flip flop who enjoys time at those particular holidays from year to year.  For instance, sometimes Easter/Spring Break is divided in half not unlike Christmas, and sometimes one parent will have the whole holiday in even years and the other parent will have the whole holiday in odd years.

Ultimately, the Judge will determine a schedule for each parent’s custodial time, provide for summers and holidays, and this schedule is enforceable through the court’s contempt powers.  In other words, a parent willfully violating a custody order could be jailed for contempt of court.