Custody litigation 101

When people ask me what custody litigation is like, I immediately picture a tug-of-war with the child being the rope.  In my opinion Child Custody litigation is the most emotionally charged in Family Court.  Typically, no one really wins in custody because the family unit is forever damaged, however, that does not mean the damage cannot be repaired. The courts will try to fashion an order that secures what is in the child's best interest.  So what is "in the child's best interest?" I believe you need to know the legal terms in order to fully understand the end result of a custody action.  

What is physical custody? Well, it is the time period when the child is in a parent's physical care and control.  How is that different from legal custody? Legal custody gives parents the right and responsiblity to make important decisions in a child's life such as education, health care, religious beliefs, discipline and so forth while in their physical care and control.  In a joint physical and legal custody arrangment both parents share physical care and control of the child and equally share the right to make decisions regarding the responsibilites stated above.

In an ideal world, both parents will be on the "same sheet of music" in regards their child's upbringing.  There will be no issues about which sports, schools, medical treatments, or even haircuts a child will receive.  Shared legal and physical custody works best for these parents who are on the "same sheet of music."  Unfortunately we do not live in an ideal world, and one of the most stressful aspect of custody litigation is discord between parents regarding their child's upbringing.  

So how does the court address a situation when the parents disagree on where the child goes to school, or which summer camp or what church the child can attend?  Typically, one parent is going to be designated the primary legal parent, and that primary parent will make the decisions that will have the more lasting impact on the child such as education, religion and so forth. 

In determining who gets primary custody, the courts must first recognize the "tug-of-war" between the parents is harmful to the child and not in the child's best interest. Second the court must then determine which parent should get the authority to make important decisions in a child's life over the other parent.  Some of the factors the court will look at is whether or not one parent is more inclined to encourage the child to have a relationship with the other parent.  Another is whether or not one parent is more inclined to consider the opinion of the other parent when making important decisions about child.  Of course, courts will also look at lifestyles, parenting skills, work obligations and a myriad of other circumstances in determining a child's best interest. Read my blog regarding teenagers.

Rest assured, even if one parent is the primary, the other parent is not completely out of the loop.  Our courts recognized there are certain things pertaining to a child to which both parents must have equal access. Additionally, our courts generally give both parents flexbility to decide what extra-curricular activity or sport the child will participate during their time with the child, however, the courts will order that the activity not interfere with the other parent's time.

In Cumberland County,North Carolina, our local rules mandate certain provisions in joint custody orders.  They are:

*Both parents shall provide one another with a current address and telephone number at all times, and notice of any change of the address and/or phone number.  Each party may maintain regular telephone contact with the minor child(ren), but no phone calls are to be made to the minor child(ren) between the hours of 9:00 p.m. and 7:00 a.m.

*Each parent shall keep the other informed of any medical condition or emergency involving the minor child(ren), keep the other informed of the general health and well-being of the minor child(ren), including illness, medical treatments and appointments; and each parent is hereby entitled to authorize medical treatment for the minor child(ren). Each shall notify the other as soon as possible of any hospitalizations

*Both parents shall have equal, full and complete access to all medical, dental, daycare, school/educational records of the minor child(ren), and shall further be entitled to consult with said medical, health, daycare or educational providers.

*Subject to school rules, each party shall have the right of access to the child(ren) at school including scheduled lunches with the child(ren).  Each parent has the right to attend parent teacher conferences, awards assemblies and other events at the school/daycare and extracurricular activities of the minor child(ren), and the parties are ordered to keep the other informed of such events and activities.

*The primary custodian shall provide the other parent with the web address of the child(ren)’s school so that the other parent may access the school/daycare schedule and activities and shall provide the password necessary to access the child(ren)’s information.  The primary custodian is ordered to provide a copy of each report card, and school schedule within five days of the receipt of the same, and information on school photos in a timely manner.

*Only the primary custodian may check the child(ren) out of school during the school day.  The secondary custodian may check the minor child(ren) out of school during school day only when that party has written permission to do so.  If the visitation schedule provides that the visitation is to begin at the end of the school day, the secondary custodian may pick up the minor child(ren) on said days, but only at the end of the school day.

*Only the primary custodian may withdraw the child(ren) from the school where the child(ren) are enrolled.

*Any plans, arrangements, disagreements that may arise between the parties, in regard to the minor child(ren) will be discussed between the parties and not in the presence of the minor child(ren). Neither party shall use disparaging remarks about the other in the presence or hearing of the minor child(ren), and shall discourage others from so doing.

*No party shall post any derogatory remarks or pictures about the other parent, other relative or other significant other on any social media site or allow others to do so in their place.  Each party shall limit placement of pictures of the minor child(ren) on any social media site.

Hopefully the provisions listed above will give you greater insight as to how joint custody works and what you can expect in a joint custody arrangement.  


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