Defined by Our Western North Carolina Family Law Attorneys

It is important that divorcing parties understand the types of custody available and the general terms used by the court in child custody matters. These terms are not always clearly defined. However, the appellate courts have discussed and further defined all of these terms. As there is no statutory definition for most of these terms, it means that their overall interpretation fluctuates over time and as case law changes. Here is a brief summary of the most commonly used custody terms.

Custody: This is a general, overarching term used to describe the total time the minor child spends with each parent and how decisions about the minor child are made. Generally, when using the term “custody” in an agreement or a judgment, further qualification is required in order to determine how the term “custody” is being used.

Physical Custody: This generally refers to the person the child resides with from day to day. Although the parent with physical custody may determine the daily routine of the minor child, major decisions related to the minor child's health, education, and other issues may still be made by the person with legal custody, split custody, or by persons with joint custody.

Exclusive Custody: This is when the child resides with one person for the vast majority of the time. That person is sometimes referred to as having “primary custody” or “sole custody” or “legal custody” of the child. When the above terms are used, courts and attorneys are generally referring to the person who has physical dominion and control over the child for extensive periods of time and who is the primary decision-maker on issues related to the child.

Joint Custody: One would think that “joint custody” is the opposite of “exclusive custody,” but there is no well-defined line between the two custody terms. Generally, "joint custody" is used to describe two people sharing time with the child. In joint custody cases, both people are responsible for decision-making on issues related to the child's health, education, and general welfare. The shared time may be for equal time or unequal time (hence, there is no specific time distinction between "joint" and "exclusive" custody). The typical difference between "joint" and "exclusive" custody is that joint custody allows both parties to worth together to make decisions about major issues related to the minor children. The court may divide the decision-making responsibilities between the parties (for specific issues) when awarding joint custody; however, the court must make findings to support that decision.

Primary v. Shared Custody: While caselaw defines both primary and shared custody, it is worth noting that the child support worksheets utilized in North Carolina indirectly define both primary and shared custody in terms of the number of overnights a minor child spends with one party. Specifically, the North Carolina Child Support Guidelines state that primary custody, in terms of number of overnights, is when one party has the minor child for 243 or more overnights.

Thus, if a party wishes to have "shared custody" of a minor child, that party must have at least 123 overnights with the child. The Guidelines further state that in order to have shared custody (for child support purposes), the party must:

  • share custody of all of the children for whom support is being determined, or
  • when one parent has primary physical custody of one of more of the children and the parents, they must share the year and each parent must assume financial responsibility for the child's expenses during the time the child lives with that parent.

In summary, parties have shared custody of a child if the child lives with each parent for a least 123 nights during the year and each parent assumes financial responsibility for the child's expenses during the time the child lives with that parent.

Visitation: A party with visitation (sometimes called “visitation rights” or “visitation privileges”) has the right to physical custody of the child for certain specific periods of time, but typically that party does not have significant or, in some cases, any, decision-making authority over the child. An example of "visitation" as opposed to another form of custody is when a parent has the right to spend time with the minor child from 9:00 a.m. to 4:00 p.m. on Saturdays, but has no other time with the minor child and has no significant decision-making ability with regard to the minor child.