Last week in the Legal Corner, we discussed the process of equitable distribution during a contested divorce. But what happens in cases when the spouses have children from the marriage and cannot agree on custody? This week, let’s continue on the topic of contested divorces and discuss what the court considers when having to decide how to split custody of the minor children from the marriage between spouses.

When spouses with children from the marriage decide to separate, important terms concerning the custody of the children have to be established. Child custody not only refers to which parental home the children will reside in, but also visitation and child support. It is always best when both parties can agree on a parenting plan. However, in cases when the spouses are unable to agree, either party can petition the court to decide.

When child custody in as issue during an uncontested divorce, the same judge who enters the divorce decree will also address the terms of custody in his or her order. The party or spouse petitioning for custody will request either sole custody or joint custody.

Sole custody allows only one parent to become the custodial parent and the parent who will make all decisions on behalf of the children. Joint custody allows both parents to share physical custody of the children and also share the responsibility of making decisions for the minor children.

In addition to joint and sole custody, the court must also establish physical and legal custody. Physical custody includes the actual day-to-day care of the children, such as where the children will live and under whose supervision. Legal custody refers to the right to make decisions for the children, such as school enrollment and health care. Thus, if the court decides to give one spouse or parent sole custody, that parent is generally the custodial parent and is also given legal and physical custody of the children.

The non-custodial parent, or the parent who is not awarded sole custody, will then be given visitation rights. Visitation rights involves the court creating a clear schedule for a parent to visit or take the child or children for an established amount of time.

On the other hand, if the court decides to give both spouses or parents joint custody of the child or children, both parties are considered custodial parents. When this happens, the court will split the time the child or children will spend with each parent, including birthdays and holidays.

This type of situation often includes the minor child or children living in the homes of both parents on days designated by the court and both parties making decisions about what schools the children will attend.

North Carolina has certain rules and procedures established to assist the court with making decisions concerning child custody. One of the rules includes requiring both parents to participate in meditation prior to court interference. Both parties are always encouraged to try to agree without the use of the court. But when the parties are unable to agree, the court will always keep the “best interest of the child or children” as the highest priority when making any decision concerning custody.

Please remember that this information is only meant to inform our readers. This article does not include all of the detailed laws and requirements related to child custody in North Carolina. If you have any additional questions about North Carolina laws pertaining to child custody and how to proceed with the process, please consult an attorney. As always: Be informed. Be prepared.

Bellonora McCallum is an attorney at the McCallum Law Firm, PLLC, in Rockingham. Reach her at 910-730-4064 or visit www.mccallumlawfirm.com.