Our firm’s founder Attorney Charles Montgomery has over 40 years of proven, award-winning legal experience.
In North Carolina, the law gives judges in the District Courts the authority to determine who has custody of minor children. Once a custody case is filed by either parent, the judge presiding at the hearing on child custody has the power to decide where the child lives, who gets custody and visitation rights, and who will get to make decisions for the child.
Generally speaking, “visitation” is the time that a parent who does not have primary physical custody spends with the child. In North Carolina, the legal distinction between custody and visitation is not clearly defined. A parent that is awarded custody time with the child of less than 50% can be said, interchangeably, to either have “secondary physical custody” or “visitation.” At the child custody court hearing, in making a determination of the custody schedule that is in the best interest of the child, the judge will either enter an order granting equal 50/50 custody time between the parents or will set a visitation schedule for the non-primary custodial parent.
Whether the judge enters an order for equal 50/50 shared custody time (or, alternatively, grants primary physical custody to one parent and visitation to the other parent) depends on a myriad of factors. The type of child custody and visitation schedule depends on conditions such as the living arrangements of the parties, the ages of the children, how far apart the parents live, the desires of older children, and whether there has been domestic violence or child abuse. Schedules may include: overnights during the week, weekend visits, telephone calls, video calls, sharing of holidays, and school vacations. A parent cannot deny custody or visitation to the other parent because the other parent does not pay child support.
North Carolina Child Visitation & Shared Custody Schedules
When one parent has primary physical custody of a child, the other parent is usually granted child visitation privileges. Except in extraordinary circumstances, it is healthy and desirable for the child to have regular contact with both parents. Shared parenting schedules where the parents equally divide custody time with the child are also common. There are a variety of options for structuring the custody schedule to equally divide custody time between the parents. These options can range from a week-on/week-off schedule, to a “2-2-3” schedule where parents alternate weekends and/or weekdays. The most appropriate custody schedule typically depends on the ages of the children and the parents’ work schedules.
When negotiating child custody terms with the other parent, the best option is usually to state that the parents will attempt to agree on a reasonable custody schedule and visitation times as they are mutually able to agree, depending on the actual circumstances from week to week. However, it is most advisable to negotiate and agree in advance upon a specific structured child custody schedule that provides a framework to follow in the event that the parents are later unable to agree on the actual schedule.
Reasonable Visitation. There is no set time for child visitation, rather it will be subject to agreement between the parents. Although it provides flexibility, this will not work unless the parents can agree on what visitation is reasonable.
Structured Visitation. There is a schedule for child visitation that may include, for example, visitation every other weekend from Friday evening through Sunday evening, alternating holidays through the year, and several weeks during summer vacation.
Until the parents execute a written separation agreement or a consent court order with provisions for custody, or the court enters an order for custody, both parents have equal rights regarding their child. This does not, however, give one parent a right to take the child from the other parent.
Supervised Visitation & Visitation Privileges
If a child may come to some harm or danger if visitation is not monitored, the judge can order that visitation be supervised. Supervised visitation sometimes occurs in the visiting parent’s home. The supervisor might be a relative, a family friend or even a social worker. Supervised visitation can occur in an even more protected setting such as the offices of a physician or community professional. If visitation begins as supervised, the judge can provide for a phase-out of supervision once the suspect parent has proven himself or herself to be more reliable or consistent around the child.
Although many clients think they can tie child support payments to visitation privileges, it is important to understand that the one is legally independent of the other. If one parent has not received the appropriate child support payment, he or she may not independently decide to bar the other parent from exercising any visitation rights. There is no supportable legal foundation for such action. In addition, such retaliation can impair your child’s welfare and could be the basis for the judge to modify the child custody terms of the existing court order.
If you live in North Carolina and have child visitation or custody questions, please contact us today.
At Montgomery Family Law, each of our attorneys dedicates 100% of their law practice to family law and divorce.
Three of our attorneys are N.C. Board Certified Family Law Specialists, a certification earned by less than 1% of lawyers statewide.
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