Co-Counsel Bulletins

COUNSELING ON CUSTODY AND VISITATION ISSUES

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TYPES OF CUSTODY.
Joint legal custody is a rare phenomenon in North Carolina, and joint physical custody is rarer still.  Most cases are settled or tried on the basis of sole custody, with one parent having exclusive physical possession of the child and the sole right to make the major decisions regarding the health, welfare and education of the child.  In a legal joint custody situation (although this term is not defined in the North Carolina General Statutes) both parents would share equally in the making of major decisions regarding the child's health, welfare and education (such as elective surgery, orthodontia, choice of religion or private schooling).  In a joint physical custody situation, also called shared physical custody, the custody of the child is alternated on some regular basis between the parents so that roughly half of the child's time is spent with each parent.

The major problem with joint legal custody is how to avoid a roadblock when both parents cannot agree on a decision.  Sometimes a structure is set up in the order or agreement whereby a tiebreaker is chosen to avoid this "veto problem."  In other cases, the instrument is prepared so that the parents will share in major decisions if that is possible; otherwise, the parent with primary physical custody may make the decision if there is a "roadblock" so long as she or he have provided the other parent with reasonable, good-faith advance notice of the proposed decision to be made.

District court judges within North Carolina seldom grant joint legal custody in a contested trial.  Most of them believe that, if the parties cannot agree on the course of their marriage or on the issue of joint legal custody, how is it possible for the court to impose agreement upon them? 

STANDARDS FOR CUSTODY.
The courts will almost never award custody to a parent merely because he earns more that the other party, professes to love the child more or states that he needs the child more than the other parent.  Decisions regarding custody have much to do with who has had the primary parenting role during the course of the marriage.  Almost never are things equal in this regard in any marriage; there is usually one parent who has been the primary caregiver, taking the child to the doctor, enrolling the child in school, taking the child to swimming lessons, etc.  The court will be looking to matters such as these in making the custody decision.

Merely wearing a military uniform does not mean that a person is automatically disqualified from having or winning legal custody.  It does put, however, a heavy burden on the custody claimant to prove that his or her military duties will not interfere unnecessarily with the custodial role.  Detailed testimony is usually needed to assure the court that military readiness and one's professional duties are not inconsistent with the caregiver role of the custodian.

VISITATION OPTIONS. 
As with custody, visitation comes in the form of two options -- open or structured.  Open visitation is seldom chosen by contesting parents.  It allows reasonable, liberal and flexible visitation rights by mutual consent of the parties.  Seldom do the parties believe they will be able to work out such an arrangement to their mutual advantage and to the benefit of the child if they have had a problem in making their marriage work.  For this reason, most parents opt for some form of structured visitation.

Structured visitation attempts to set out a basic minimum of visitation rights for the non-custodial parent.  For the purposes of this illustration, the non-custodial parent is assumed to be the father.  Such a provision in an order or a separation agreement might set visitation for a nearby father at:

A.       Every other weekend from 6:00 o'clock Friday until 6:00 Sunday.

B.       December 25 at noon until December 30 at 6:00 o'clock p.m. of every year.

C.       Alternating Thanksgiving and Easter holidays.

D.       Four weeks in the summer if notice is given to mother not later than April 1.

E.       Father's Day of each year regardless of whether it is his weekend or not.

A more extensive schedule might go on for several pages, containing provisions for "make-up" days, the birthdays of the children, visitation by the mother in the middle of dad's summer visitation with the child, and other matters.

Many non-custodial fathers ask about child support during summer visitation.  While this is solely in the discretion of the trial court judge, it is rare in North Carolina to see a total suspension of child support during summer visitation.  Visitation is seen as the right and privilege of the father, and he should not have to be encouraged to take advantage of same by giving him a monetary reward.  Sometimes a reduction will be ordered (or agreed upon by the parties) in the event of visitation of long duration (4-6 weeks) with the children, but this is seldom a total elimination of child support.  Although dad will have additional costs by way of gasoline, food, entertainment and other things, few of mom's "embedded costs" go away during a month period of visitation in the summer.  She still has the burden of purchasing clothes for the children, having an extra room available for them, etc.  A reasonable trade in most cases might involve a reduction of child support by one-half or one-third if the visitation were four weeks long or more.

PICK-UP AND RETURN PROBLEMS
Another question that arises frequently is the issue of travel expenses.  Visitation, being seen as a privilege of dad, carries a cost with it.  This is the cost of transportation.  Unless agreed otherwise, the court will rarely order mom to pay any travel expenses in order that dad may exercise his visitation privileges.  The cost and making of travel arrangements is almost always the responsibility of the non-custodial parent.

A good agreement or order will make provision for dad's possible tardiness in visitation.  Such a provision might state that:

In the event that the father is more than one hour late without explanation on Friday evening for his weekend visitation, the visitation shall be cancelled at the option of mother.  No make-up days shall be allowed in this situation.  If, on the other hand, he is unable to exercise his weekend visitation rights not due to his own fault, and if he provides reasonable advance notice (of at least three days) to mother, he may use one of the next two non-visitation weekends as his make-up weekend, with the choice of that make-up weekend belonging to the mother so as not to conflict with her plans.

MISCELLANEOUS ISSUES IN VISITATION
Another wise idea for an order or agreement regarding visitation is to require each party to keep the other notified of the whereabouts of the child or children at all times.  For dad during his summer visitation, this will mean he has to give mom his regular work and home addresses and telephone numbers, as well as the dates and locations of any vacation trips he is planning.

Another common provision is to allow unlimited telephone access by the visiting parent with the child.  In the event some disputes are anticipated, it would be a good idea to "lock in" a particular night of each week for dad, at his own expense, to call the child.  Great care must be taken, however, that dad only negotiates such a clause if he intends to exercise these rights.  Mom will also need to be advised that she should keep conflicting telephone calls to a minimum and have the child ready and available on the specified evening.

Finally, another desirable clause for a custody agreement would be to require the custodial parent to provide copies of school progress reports, report cards and medical reports to the non-custodial parent.  Such mandated cooperation between the parents can usually avoid a great deal of bitterness.  G.S. 50-13.2 provides for equal access to medical and educational records by both parents.

[rev. 6/28/99]

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