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Custody is the physical care and supervision of a child under 18 years of age. Physical custody is used to describe the person with whom the child lives on a day-to-day basis. Legal custody is used to describe the person who has the right to make major decisions concerning the child, including decisions about the child’s education, health care, and religious training.1
There are two different types of custody arrangements: joint/shared custody and sole/exclusive custody.2 Then there is visitation, which refers to the time that the child spends with the parent who the child does not live with.
1 NCGS § 50A-102(3)
2 NCGS § 50-13.2(b)
What is sole custody?
Sole custody or exclusive custody means that one parent makes all of the major decisions in the child’s life. The parent with sole custody is referred to as the “custodial parent” and the other parent is referred to as the “non-custodial parent.” Generally, the court will order that the non-custodial parent will have continuing contact with the child through visitation. It is even possible for the court to order that the non-custodial parent can see the child as often as a parent who has joint custody would see his/her child.
What is joint custody?
Joint custody or shared custody means that both parents make the major decisions in the child’s life together (jointly). To make these joint decisions, the parents have to be able to communicate and negotiate with each other to come up with a decision that they both agree on. For this reason, joint custody often is not a good option in relationships where there is domestic violence. Minor day-to-day decisions such as bedtime or what the child will wear are up to the parent who is with the child at the time.
Joint custody does not mean that a child must live half of the time with one parent and the other half of the time with the other parent. It means that physical custody will be shared in such a way to ensure that the child has continuing contact with each parent. Usually, the court will specify with which parent the child will be primarily living.1
1 NCGS § 50-13.2(b)
What is visitation?
Visitation is a term that will likely be included in any custody order. Visitation gives the non-custodial parent the right to see the children. The court usually likes to set a specific visitation schedule for the child to spend time with the non-custodial parent. The amount and type of visitation granted can depend on the ages of the children, how far apart the parents live from each other, and other specific factors relating your child. A visitation schedule can include weekly sleepovers, weekends, weekday evenings, shared holidays, school vacations, summers, etc.
A judge may order supervised visitation if the safety of the child is an issue. If there has been domestic violence between the parents, a judge may also order that the exchange of the child take place in a supervised setting or in a public place.1
1 NCGS § 50-13.2(b)
What are some pros and cons of starting a custody case?
There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for more custody or visitation rights than they are comfortable with.
If the other parent is presently uninvolved with the child, he or she may become involved just because a case was started. Also, if the other parent fights for custody, the case may drag on for a long period of time, sometimes over a year. You may need to go to court several times, especially if the other parent also wants custody. The court will look into many aspects of your personal life that you may prefer keeping private such as past mental health issues, your criminal record, substance abuse issues, and details of your personal relationships.
However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
- the right to make decisions about your child; and
- the right to have your child live with you (residency).
Without a custody order, it is possible that both parents may share these legal rights, even if one parent takes care of the child every day. However, if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.
We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation. You can find legal help by clicking on the NC Finding a Lawyer page.
Some people think they should file for custody so they can get child support. While custody and child support are related, you do not necessarily need a custody order to get child support. A custody order will not automatically give you child support. Go to our Child Support page for more information. Also, you do not need a custody order to receive welfare assistance, medical care, and medical insurance for your child, to enroll your child in school, or to allow somebody else to take care of your child temporarily.
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request, although this may depend on your situation.
However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to NC Finding a Lawyer to seek out legal advice.
