"Across three states, Jenny was hands-down the best divorce lawyer I worked with! Authentic, savvy, insightful, tough, empathetic and effective. Can ’t say enough good things about her."
If you have children, and you and your partner decide to separate, one of the most important parts of your separation agreement is deciding where and with whom your children will live. It is important for parents to handle separation and divorce delicately to minimize the impact on their children. An experienced child custody attorney can guide your custody negotiations during mediation or Court proceedings with the best interests of your children in mind.
Most people have some idea of what custody is, but don’t know the difference between the types of child custody: physical and legal. Understanding what each child custody type means makes it easier to choose what’s best for your particular situation.
Legal custody refers to how parents make important decisions about their children. These decisions may be but are not limited to decisions related to the child’s education, medical care, and religious choices. You can have joint legal custody where both parents have equal say in all major decisions affecting the children. You can have sole legal custody where only one parent has the right to make all major decisions affecting the children. Or, you may have a situation where one parent makes certain decisions, like school choice, and the other parent makes other decisions, like religious upbringing. There is not going to be a one-size-fits-all solution to legal custody of children.
Physical custody refers to the daily responsibility of caring for a child. This type of custody also determines where the child lives. Spouses can have shared l physical custody where the child lives with both parents according to a schedule, or you can have primary and secondary physical custody. In this arrangement, the child lives with the parent with primary physical custody, and the parent with secondary physical custody will have visitation rights. Visitation rights do not mean that your child won’t ever stay with you, just that it will be considerably less than 50% of the year.
It is common, especially recently, for parents to be granted joint legal custody of children. This means that each parent has equal decision-making authority over the major decisions that affect their children’s lives. Oftentimes, joint physical custody is also agreed to or awarded by the Court. Joint physical custody is not always an equal schedule but does involve something more than two or three overnights every other weekend.
However, sometimes it is in the child’s best interest for one parent to get sole legal custody. More often than not, when one parent has primary physical custody of the child, the other parent usually has secondary physical custody or visitation privileges.
Except under special circumstances, it is healthy and desirable for a child to have regular contact with the non-custodial parent.
There are two main options for visitation, which are:
Both parents have equal legal rights over their children until they agree otherwise or until a Court says otherwise. Likewise, each party has an equal claim to physical custody until custody is established in a written agreement or in a Court Order. However, this does not give one parent the right to take a child from another parent.
We almost always recommend parents try to make decisions about their children outside the Courts when they can. However, if they cannot resolve custody issues, child support, or visits, a judge will intervene, if requested.
North Carolina law directs that a district Court judge protects a child until the child reaches 18 years of age if the parents do not come to an agreement, or if either of the parents brings the matter to Court.
Typically, putting child welfare first and making the decisions through agreements, not Court proceedings, is best for both the children and the parents. Parents should never use a child for revenge or leverage, and the needs and interests of the child should always be a priority. Mediation is a tool to make parental decisions and to avoid having the Courts make these decisions for you.
When you file for custody in North Carolina, generally you are going to be sent to the free Custody Mediation Program run by the court system before being seen by a judge. If parents reach a custody agreement during this mediation process, the mediator will prepare a written Parenting Agreement. Both parties and the Judge will then sign the Parenting Agreement, and it becomes a Court Order. Additionally, the parents can agree to attend private mediation outside of the court system. If they reach a custody agreement there, the attorneys involved will draft either a Consent Order or an agreement addressing legal and physical custody.
If the parents do not agree, the local District Court judge decides:
You need to consult with your child custody lawyer to understand your legal rights and obligations, to help you negotiate for your children’s best interest, and to review any draft Parenting Agreement or Consent Order before you sign it! If the case has not entered the hearing or trial stage, a child custody lawyer can point out red flags or guide you on what else should be included in your Agreement or Order. Their help can make the difference between regularly getting to see your kids, only seeing them on the weekends, or not at all.
Grudges between divorced couples can complicate custody issues for children. However, your child’s legal custody, physical custody, and visitation decisions have a direct and often lifelong impact on your child’s well-being and affect your entire family. This is why it is essential to have the guidance and representation of an attorney experienced in child custody matters.
Triangle Smart Divorce takes pride in helping parents navigate through all the issues surrounding child custody. We take time to learn and appreciate your family’s dynamics to assist you in developing your parenting plans, including efforts to ease emotional obstacles that prevent you and the other parent from agreeing. We know what it takes to put together a well-thought-out plan for child custody. If your partner is unreasonable, entrenched, abusive, argumentative or one of a dozen other obstructionist things, we know how to handle that as well. In the end, we all want what’s best for your children.
Contact us today to schedule a call with an experienced Cary child custody lawyer.
"Across three states, Jenny was hands-down the best divorce lawyer I worked with! Authentic, savvy, insightful, tough, empathetic and effective. Can ’t say enough good things about her."
"The entire staff at Triangle Smart Divorce has been wonderful. My divorce has been extremely complicated and difficult, they have helped and been successful at every turn. They are more than competent and are also very compassionate individuals. They will and do walk you through each and every step to obtain the best results for you. An amazing team!"
"I would rate everything about my experience with Triangle Smart Divorce as 5 stars. The hardest step of any big decision is the first step. Jessica set the tone from the very first phone call. She was compassionate, calming and reassuring. The whole team has continued to work to maintain a supportive environment during the most difficult time of my life. I’m very grateful."
"Jenny Bradley and her team at Triangle Smart Divorce was the best decision I made. "
"Great firm! An outstanding group of professionals who are knowledgeable and care about their clients. I recommend Julianne and the firm to my clients and friends needing divorce and family law services."
"I felt heard, understood and listened to. Always there when I needed them! Had my best interest at heart and never let me down!"
"Outstanding firm. Try to work with their clients. Listens like a therapist. I am thoroughly pleased with the services I have been provided."
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