What is Joint Legal Custody?
One of the most common types of custody arrangements in North Carolina is what is often referred to as "joint legal custody." In theory, this simply means that both parents have equal legal authority or "authority" with respect to the child. However, practically speaking in North Carolina custody cases, the term "legal custody" simply means that the parties are sharing or equal with respect to the decision making process for the child.
The vast majority of custody orders I see from other states, or from custody orders entered by Judges of the North Carolina Courts here in Wake County or other counties in North Carolina, are indeed "joint legal custody" as that term is used in North Carolina custody cases and orders. More specifically, joint legal custody is a form of custody decision making authority that provides that both parents share equal responsibility with respect to the direction or control of the minor child’s care, upbringing, health and medical care, education, extracurricular activities, religious instruction and practices, general lifestyle, and any other matter involving the upbringing of the minor child.
This definition does not include a discussion of how or where the child will live or how much time he or she will spend with either parent, nor does it reference parenting time, visitation or physical custody, all of which are discussed in other parts of any decent North Carolina divorce or child custody if all of that is considered relevant to understanding the situation.
When two parents have joint legal custody of a minor child, it is incumbent upon the parents to work together with each other to make those decisions for the child . When one parent believes that the other parent is not acting in the child’s best interest, that parent typically has an obligation to take up those issues with the other parent and to attempt to come to an agreement on the issue, even if that means going round and round with the other parent about it until a consensus or agreement can be reached. If that is not successful, then the parent is usually left with the alternative of seeking Court intervention by way of a Motion, or some other form of pleading, that asks the Court to intervene because intervention by the Court is necessary to protect the welfare of the child. That is a very basic outline or idea of how disputes are handled when parents share legal custody of a minor child.
Clearly, some parents will always have a harder time with joint legal custody than others, or some will struggle more than others to come to a consensus on certain issues impacting the child’s well-being. Nonetheless, unless there exists a very valid reason for a Court to enter an Order that reflects different provisions, the typical Order in these situations will be that both parents have joint legal custody, and such is presumed to be in the child’s best interest, absent competent, substantial, and credible evidence to the contrary at the time an Order is entered.
Again, joint legal custody does not address primary physical custody, or the precise extent of time the child spends with each parent. In fact, it is probable that, in most cases, whether there is joint legal custody or only legal care and custody of the minor child is not relevant to the amount of parenting time a child gets to spend with the parent. Therefore, although we refer to joint legal custody in custody cases, the expression itself may reasonably be used to differentiate a legal and binding custodial arrangement from the old-fashioned, non-binding arrangement to come to Court once every year or six months to informally ask about scheduling issues.
North Carolina Laws on Joint Legal Custody
In North Carolina, joint legal custody is governed by G.S. 50-13.2(a). Under this statute, the Court cannot award joint legal custody unless the parents have filed a Parenting Agreement with the Court and the Court deems that Agreement to be consistent with the child’s best interest.
Once joint legal custody has been ordered, then each party has the legal authority to make educational and medical decisions for the child. G.S. 50-13.7(b). However, if the parties are not in agreement about a substantive decision such as a medical procedure or what school a child should attend, then either party may file a motion for a determination of legal custody under G.S. 50-13.7(b1).
When custody is contested, the Judge must determine whether awarding "joint custody is in the best interest of the child." G.S. § 50-13.2(a). The statute goes on to elaborate that, in order for a parent to receive this liberal award of joint legal custody, that parent must have demonstrated "past performance in matters of physical, mental and spiritual care and guidance, including education that generally demonstrates reasonable and good faith effort to administer the whole matter of the child’s interests and welfare consistently with the other parent." This past performance must be recent, typically requiring the Court to analyze the parent’s decisions over the last six (6) months. If not, the parent who had "physical custody" of the children prior to the Court Action is usually awarded primary legal custody, with limited authority granted to the other parent as to educational and medical decisions.
Other than the "recent past performance" requirement, there are no statutory requirements to justify a deviation from an otherwise equal sharing of decision-making authority by joint custodian parents. Accordingly, because joint legal custody is clearly the preference of the North Carolina General Assembly, and because you cannot get it unless you already have it, great care should be taken to preserve the cooperative nature of any Parenting Agreement after the Order has been made.
Decision-Making Authority in Joint Legal Custody
The daily decisions with minor impact, like what to wear to school and when to do homework, are thoughtful little encounters we have on autopilot. We don’t confer with our spouse or child about them—they’re too trivial for that. But then there are those decisions that demand communication and coordination with your ex-spouse. Decisions about your child’s education, health care, and character formation are examples of those major decisions. When you share legal custody of your child with your former spouse, you have to agree on these things.
You and your ex are not alone in this responsibility. The school principal and the physician will want to talk with both parents. The parent who takes your child to school or to the doctor’s office will not be able to make these decisions on his or her own.
When you create your consent order (or court order), this sharing of responsibility does not have to be a particularly big deal. You can list all of the major areas where you need to make decisions together. While it is true that the law presumes that parents will make decisions together in the best interest of their children, you clarify that by naming the specific decisions on which you need to collaborate. You also provide for how you and your ex will consult about and make the decisions on these issues.
If you can’t agree, or if your ex is meddlesome, you can ask the judge to step in with a decision. That’s not something you’ll likely want to do regularly, but it’s comforting to know you have that option.
You can also name a process (like joint mediation) for resolution or a person (like a grandparent) who can step in and help.
There is one area where the court may not want you to have joint control over decisions: the decision of whether your child will participate in special education services. Not long ago, this was viewed as a major decision, but the law recently was changed to state that it is not. The reason for the "no can do" stance on special education is that a parent’s right to consent to special education is guaranteed by federal law, so the family court must respect that. So . . . be mindful that while you will want to include the issue of special education in the decision-making list, you can only make a major decision on it with your ex while also chatting with the school.
Advantages and Disadvantages of Joint Legal Custody
The benefits of joint legal custody are numerous. First, the concept shares many of the same benefits as sole legal custody for the parents. The parents do not have to agree about every little aspect of the children’s lives. Parents with joint legal custody, or even primary physical custody, may be able to have a more flexible schedule because neither parent is likely to be viewed as "the evil one" because each parent has input. Children are often happier when parents have joint legal custody because they feel that they have access to both parents and their home life is more stable.
The challenges of joint legal custody are more numerous. A parent may:
Additionally, this is not at all an exhaustive list, but it does illustrate that there are many issues under which parents may disagree. Of course, the vast majority of parents are reasonable people and discuss situations calmly, resolve issues peacefully, and move on with their lives. However, there are those who believe that if they just keep fighting a judge will eventually see things the way they do and rule in their favor.
The problem is that when parents argue before the judge about issues of custody and visitation, the judge cannot possibly see everything about these parents the way they do. In fact, when parents spend all their time arguing and fighting, it’s more likely that the judge will see the situation very differently and make a ruling that captures them both in the middle.
A case in point – I notice that whenever one parent brings an issue or a motion regarding custody to court, the judge often probes into other issues they didn’t bring to the court’s attention. Many judges will ask about the other parent’s time with the child, the health, education, and well-being of the child. If the arguing parent focus on the monetary value of the issues they raise, the judge may immediately take note of this and make them pay for it later.
How to Achieve Joint Legal Custody in North Carolina
Joint legal custody can be obtained by consent of the parties, or by an Order from an NC judge after a hearing on the best interests of the child. It is important to understand that there are two parts to every custody case: actual-physical-conduct, and legal decision-making (which we will explore further below). It is not limited to what parents do or do not do with the child during each parent’s "physical" custodial time.
Any Judgment or Order that addresses custody must address both: physical custody and legal custody. Custody of a child always includes legal custody, since parents share the Duty of Support until the child reaches adulthood and becomes emancipated.
The first (and beneficial) step is to try to get the parents to agree on legal custody. This will occasionally happen between the parties themselves. But more often than not , it requires an agreement through mediation. A written agreement is absolutely necessary when dealing with NC divorce and custodial issues.
If the parties agree to give both parents legal custody and they are able to outline that agreement in a written record (such as a Separation Agreement and Settlement), it is generally easy for the judge to approve the Agreement as long as it includes standard verbiage regarding the parties’ sharing the Ordinary Care and Duty of Supervision, etc.
If parents cannot agree to joint legal custody, it will take a judge to order Joint Legal Custody after a hearing. The judge will review relevant evidence presented by both sides, which will usually be the parties’ testimony and any additional relevant evidence. The judge then considers the best interests of the child based on applicable law and the evidence. The court will find by the greater weight of the evidence presented that joint legal custody is or is not in the best interests of the child.
Common Questions
The following are some of the most common questions we hear about joint legal custody:
Q. Can I modify the custody arrangement or visitation arrangement?
A. Yes, under North Carolina law you can modify child custody if there has been a substantial change in circumstances that affects the child’s welfare. Whether a change to a custody or visitation arrangement is in the best interest of the child, however, is very fact-dependent and should be made after consulting with an attorney.
Q. What happens if domestic violence is present?
A. Typically, courts take a dim view of anyone with a history of domestic violence. A judge may order supervised visitation (if they do award visitation) in a secure facility, or deny visitation altogether, depending on the situation.
Getting Help
For those who wish to seek to establish joint legal custody over a child, it may be wise to speak with an attorney to learn more about your rights and responsibilities. In North Carolina, for example, a court can award joint legal custody even if the parties have never been married. While the North Carolina statute envisions parents, this does not mean it cannot be applied to other parties seeking joint legal custody.
In seeking an attorney, consider the following:
1. Consider the North Carolina State Bar’s referral services or the North Carolina Academy of Trial Lawyers Lawyer Referral Service. The North Carolina Academy of Trial Lawyers provides referrals to certified specialists in family law. See www.ncaj.com.
2 . Interview the attorney beforehand. Be certain that the attorney will meet with you in person, and that the attorney is knowledgeable in the area of family law. How much experience in family law does the lawyer have? Has the attorney conducted trials? Does he or she frequently appear in courts different from the ones closest to his or her office?
3. Ask about the local bar association. Members of the Charlotte Bar Association (CBA) are very active in representing clients in family law matters.
4. Consider getting a temporary custody order. For many parents, it may be advisable to seek a temporary custody order immediately. This may avoid much of the uncertainty and strife that litigants experience in a custody fight.