(704) 275-0951Episode 2
Dispelling Myths-Understanding Child Custody Dynamics
Welcome to Advocating for Dads with Jana Jones . I’m Sam Henninger, and I’m excited to have another conversation with Jana. We’re going to kick things off with: Jana, you practice family law. You’re advocating for dads. I want to understand a bit more. You can lay this out in straightforward terms: the differences between physical and legal custody when it comes to child custody and how each type impacts the child and parents.
Yeah, so they are different. That’s the first thing to note. They get interchanged a lot, but they are technically two other issues. So legal custody is decision-making authority, okay? So it’s not where the kid’s residing; it’s simply decisions related to the child. So those can be things like what religion they practice, where they go to school, what procedure they get, what language they learn, any decisions related to the child, whether they have a passport. Things of that nature are going to be legal custody.
On the other hand, physical custody is where the child resides. In North Carolina, everything is based on overnights. So when we’re talking about primary or joint custody, the magic number as of this recording in 2024, because things may change, is 123 overnights. Once you hit that number, you have shared or joint physical custody. If you’re at 122 or less, you have visitation, and the other parent has primary physical custody.
What other misunderstandings or lack of knowledge do parents have about this distinction in legal and physical custody arrangements?
So I would say with legal, I think it’s important to note that most judges are going to come off the assumption that joint legal is going to be in the child or children’s best interest, which means that both parents should be able to equally contribute to decisions related to the child, regardless of the physical custody arrangement. So if you have one parent who has every other weekend and the other parent has primary physical custody, the parent who has every other weekend has just as much say in what religion a child practices, what school a child attends, what medical procedure a child has as the parent who has primary physical custody. Many things can come up when making decisions about kids, and you can’t go to court every time you disagree. So what we generally have in many orders is a tiebreaker decision-making authority or a mechanism that gets triggered when it’s time to make those decisions, and the parents cannot agree. So when you have a joint legal custody arrangement, the parents should talk to each other about those decisions, go back and forth, weigh the pros and cons, and come together to decide. But if it turns out that one parent wants one thing and the other parent wants the other, and there’s joint legal custody, that decision-making authority, if one parent has it, will be what breaks that tie. Other options available are mediation or arbitration. Mediation is where a neutral third party goes back and forth between the parties to express what the other side is saying to see if they can help them facilitate an agreement. An arbitrator is an attorney, but they act as a judge. And so you put on evidence, as each parent puts on evidence, and the arbitrator decides about whatever the parents disagree over. So, say you’re trying to figure out which school the child will attend in the fall, and you can’t agree. Dad wants one school, and Mom wants another. If your custody order says that you have joint legal custody and if you can’t agree that you have to go to arbitration, then each parent is going to have to put their case in front of the arbitrator as to why the school they want is going to be in that child’s best interest. Ultimately, the arbitrator will decide which school the child should attend.
How do visitation and one parent having primary physical custody work together?
That 123 number is the magic number when it comes to custody. So, 123 overnights shifts you from a joint to a primary custody arrangement. If you both have 123 or more, the parent have joint custody. If you have 122 or less, you have visitation, and the other parent has primary custody.
Is that determined by what the parents do, or is that decided more by the court order?
Right. So it depends on where the parties are at. Sometimes, people operate for several years without getting the court involved. And then something happens that precipitates the need for custody or something more formal. Other times, parties who split and have children immediately go into the court system to get a custody order. So when dealing with those issues, you want to get as much time as possible as the parent. You want to make sure that you are getting the time that you deserve and that you wish. And if you need more time, you must file a court case.
What other considerations should parents keep in mind when it comes to negotiating custody agreements outside of court?
So it’s essential to focus on the children, not what you want, but what is best for your child. So, if you work the third shift, getting up with the kids to get to school or extracurriculars will be challenging. They will miss out on some of that because of your schedule. If they’re with you, that’s something you must consider when figuring out what kind of custody arrangement is best for your children. Also, you know, co-parenting is so essential. When parents split up, they’re generally not happy with one another. Somebody’s done something wrong, maybe both of them have, who knows, but they’re not happy anymore. But it doesn’t negate that they’ve got kids together; those kids still have things they need, including both of them. So, the most important thing you can do is focus on the children.
Give us an idea of what those conversations or considerations look like when considering the child’s best interests.
So, generally, what is it that you want to see happen? What schedule do you want to use? If you were writing the order, what would it look like? I believe in starting there. And then I believe in being honest. I’m a straight shooter. So if I think that the schedule they’re saying they want doesn’t make sense with the lifestyle or maybe the work schedule that they have, then I’m willing to have those hard conversations and make sure that they’re prepared in front of a judge to explain why maybe something a little bit unconventional is still going to work and is still going to be in that child’s best interest.
How can parents collaborate to create a co-parenting plan that supports their child’s well-being despite differences in physical or legal custody arrangements?
The most significant thing parents can do is put their differences aside and try to be as objective as possible when figuring out what’s best for their children. If it will be more practical for the child to follow a specific schedule, then that’s the schedule that the parents need to consider as being the best to implement.
Could you relate a successful case you’ve had recently or just a notable one that illustrates parents working together to develop the best solution for their kids?
I am a firm believer in getting a case settled if we can. My general premise when working with a parent is that I have them fill out a questionnaire that gives me a lot of detail and information. As mentioned in the first podcast, the first step is always a consultation. And I’m taking some notes, but I need to take copious notes. I’m getting a feel for what you’re trying to do and give you some value, information, and next steps because not everybody can hire me. And some people may not be able to hire me yet because they’ve got plans, but something still needs to change, right? They’re just trying to be proactive and get information. I’m not spending a lot of time taking copious notes. Once they become a client, everyone receives a questionnaire to fill out. That’s where they gave me a lot of detail and information that I use to draft pleadings and a proposed consent order because it’s always worth trying to see if you can settle something amongst yourselves instead of throwing it in front of a judge and hoping for the best. Right? So, in the consent order piece, my client and I go back and forth to craft an order based on what we want to see. And then we will present that to the other side, whether they’re represented or not, to see if we can resolve it. Sometimes, we can because the other side is closer to things than my client thought. And we can work towards something that they are both happy with.
Jana, what challenges do parents commonly face during child custody battles, and how does having legal counsel benefit them?
Information is power. I believe that the biggest issue that a lot of parents have with these custody cases is not knowing what they don’t know, not understanding how the law in North Carolina works, and not understanding that a judge is supposed to determine the best interest, not what’s fair to anybody, but what’s in the best interest of the child or children. And like any job, anybody else does, you know what you do because this is what you do for a living. I practice law for a living. Most of my clients do not. Therefore, they must know the complexities of dealing with the legal system, policies, and procedures. And this is about something other than being smart. It’s about having information. So, I always recommend that anybody going through these issues get a consultation because you need to know what you don’t know.
I particularly appreciate that because I think for most lay people who have not interacted with the courts or law in general, except when they need to as a client, there’s generally quite a big difference between what somebody thinks as just the just and fair and common sense thing to do and what the law can provide.
Exactly. I often tell my clients they will never be able to prosecute their ex into being a better person. That is not the power of the court system. Who you have is who you have. We can put some parameters on what that schedule looks like and give you guys some footing on what to expect, give the child some stability, and give you some structure to make plans, vacations, et cetera, with the children, without the children. That is what the court can do. The court cannot fix the relationship. That is not the court’s job, nor is the court inclined to. That’s for therapy. We are here to create orders. It’s important to know that when you’re in this situation. If you’re hoping that getting the courts involved will help your co-parent relationship, that may or may not be the case. But what going into the court system will get you is an order one way or the other. And at least everybody knows what the ground rules are at that point.
What would you say about giving an excellent synopsis of how first interactions work with you with this initial consultation and then coming on as a client, what that questionnaire involves, and how to get started there? What else might you say regarding expectation setting, giving a general timeline, or what to expect next? And how do you set their expectations there?
Yeah, so it depends on where you are in a case. If we’re starting a brand new action, we’re starting with a summons and a complaint. Those are the basics and the basic pleadings of any custody lawsuit. So you will need to know the address of the other party. That can sometimes be a challenge. The relationship may be strained. You may not know their address for various reasons. Attorneys don’t fine people. That’s what private investigators are for. So you’re going to need that information. That’s part of the questionnaire, and we can only file something if we have an address. If you have a work address, that could work. Suppose they get their mail at their mom’s house. You can serve them there. We can try, at least. Mom may not sign for it, but we can try. But you do have to have an address. That is one of those practical things that many folks need to realize. And so it’s one thing to remember as you’re starting one of these types of cases. Once we have the information we need in that questionnaire, I start drafting the complaint, assuming we’re starting a brand new case. And anything I draft will be sent to my client for approval before anything is filed. So once we have their approval, we make whatever tweaks or edits we need to get that approval, then file and send it out for service. Service is the next big sticker. The court only recognizes that you have a lawsuit once the other side has been served, and they must be adequately served. So that’s not shooting them an email. That is filing something with the court that proves they have gotten that service in the way the law requires. So, generally, it will be a certified mail return receipt requested. That green card has to come back with a signature. The defendant can accept service in a couple of different ways. They can draft an acceptance of service. Recently, North Carolina has updated the summons, so you can, as the defendant, sign the second page and accept service that way. Then, sheriffs can serve people, and private process servers can also serve folks. So, there are two things to keep in mind. While they’re not sexy, they’re essential. You need to know the address and be prepared to deal with the service issue, and understand that that must be done correctly before anything else can start.
I appreciate that. Spelling out these steps before things can get started helps paint a realistic picture of how these things can take time. As we conclude, I’d like another piece of advice you offer to parents who are beginning to navigate these child custody matters and may be unsure where to start or what to expect.
The first step is always a consultation. No matter what, you don’t know what you don’t know. So, the first step is consultation. You should come out of a consultation with any attorney with an action plan, knowing what your next steps are and what’s realistic. It’s essential to be honest with people. And tell them if their expectations or what they’re trying to do are unlikely to happen. So be ready for that. If you’re going to somebody to tell you what you want to hear, that will not necessarily serve you well. You’re going to want to get some honest information and be able to make an informed decision. So, in conclusion, get a consultation.
Thank you again so much, Jana. I learned a lot, and our listeners did, too.
Thank you.
This has been Advocating for Dads with Jana Jones. I’m Sam Henninger. Please like, share, and subscribe to continue having these great conversations.,