legal custody

Legal Custody Versus Physical Custody

North Carolina recognizes two aspects of child custody – legal custody and physical custody. North Carolina uses the best interest of the child standard in determining both aspects of child custody. This blog will not go into depth about how a court decides child custody, but instead will simply explain the difference in the two aspects of child custody in North Carolina.

Both must be addressed

Every child custody case will address both physical custody and legal custody. They are two sides of the same coin.

Main Difference

The main difference in the two terms is that physical custody addresses when each parent has physical control of the child, while legal custody addresses which parent is responsible for major life decisions, such as education and religion.

Physical Custody

Whichever parent is exercising physical custody at the time gets to decide how to parent the child. They also have the right to decide how day-to-day activities are carried out and make all of the non-major decisions regarding the care of the child while that child is in their custody.

In determining the physical custody arrangement, a court may address the following:

  • Whether joint or primary physical custody is appropriate (more on that later)
  • Custody or visitation schedule (depending on how physical custody is split)
  • Whether supervised or unsupervised visitation is appropriate
  • How holidays are split
  • How, when, and where the exchange is to occur
  • How conversation about each parent is handled in front of the child (example: no disparaging remarks made in front of child during physical custody time
  • How phone calls and communication with non-custodial parent take place
  • Etc.

Legal Custody

Legal custody refers to which parent has the right to make the major life decisions on behalf of the child. Some examples include:

  • Education
  • Religion
  • Non-emergency major medical treatment
  • Extra-curricular activities

Joint Versus Sole or Primary Custody

Physical Custody

If the parents have equal time with the child, they are said to have joint or shared custody. If one parent is awarded the bulk of the custody, that parent is said to have primary or sole physical custody, while the non-custodial parent is said to have secondary custody or visitation rights.

Legal Custody

Joint legal custody means that the both parents make the major life decisions, such as the ones we described earlier in the blog. While results can vary, in a typical joint legal custody arrangement, if there is dispute, either one parent gets to be the tiebreaker, or each parent gets to be the tiebreaker for certain decisions (example, Mom gets to be the tiebreaker regarding education, and Dad gets to be the tiebreaker regarding religion).

Legal and physical custody can occur in different combinations. For example, Mom could have primary physical custody and parents can share legal custody. Or, parents can have joint physical and legal custody

Effect on Child Support

Physical custody is used as one of the main factors in determining child support. Legal custody is not relevant in the calculation. In calculating child support, the court uses the number of overnights per year that the child spends with each parent. If the child spends fewer than 123 overnights with one parent per year, then the parent with more custody is said to have primary/sole physical custody. Otherwise, parents have joint physical custody for child support purposes. For example, if Parent A has 200 overnights with the child per year and Parent B has 165 overnights with the child per year, the parents have joint physical custody.

If you have questions about child custody or another area of North Carolina family law, contact us at 980-272-8438 to set up a consultation with a family law attorney.

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