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Of all the issues raised by separation and divorce, child custody is the most difficult. Our Supreme Court has recognized that “one of the gravest responsibilities that can be placed upon a court – and one of the most heart searching – is to determine the proper custodian of a child. Courts should ever bear in mind that children are not chattel, but intelligent and moral beings, and their happiness and welfare is a matter of prime consideration.”
In North Carolina, there are several types of child custody, including legal custody, physical custody and visitation. Legal custody refers to the rights and obligations associated with major decisions affecting the child's life, including those relating to health, schooling, religious instructions and other issues with long-term implications for the child. Parents are often granted joint legal custody. Physical custody refers to the rights and obligations of the person with whom the child resides. If the child resides with one person for significant periods of time, that person has “sole custody” or “primary physical custody.” If the child resides with two persons for significant periods of time, these persons have joint physical custody. Visitation refers to a lesser degree of custodial rights. Visitation is sometimes referred to as “secondary physical custody.”
The best interest of the child controls custody determinations in North Carolina. By statute, the court must enter an award of custody that “will best promote the interest and welfare of the child….” Although this mandate is simple in theory, it is quite difficult to implement in practice. Our individual views of the child's best interests vary greatly depending on our differing experiences, biases, education and other influences. These same influences shape the opinions of judges and other decision-makers. Also, society's, and likewise the court's, views as to what is best for children change over time. Because of these variables, the outcome of a judicial custody determination is unpredictable. The law vests enormous discretion in the trial judge and reversals on appeal are rare. For these reasons, parents are encouraged to try to reach an agreement. This possibility of avoiding court proceedings often allows for an amicable resolution of difficulties between separating parties, eliminates the uncertainty of the outcome, and assists the child in adapting to his or her new way of life by sparing the child and the parties the trauma of litigation.