What’s the Difference Between Joint Custody and Sole Custody?

In dealing with Child Custody on a daily basis in Charlotte, North Carolina, individuals frequently ask what is the difference between Visitation and Custody, or what is the difference between joint and sole custody.

The truth is, visitation by its very nature is the time a parent is afforded to spend with a minor child under a Child Custody Order. Under North Carolina Statue, a court is required to consider joint custody if one of the two parties requests it. A joint may give both parents joint legal custody, which refers to decision making authority, while giving one parent physical custody of the child, with visitation to the other. In addition, Joint Child Custody may be ordered when both parents request sole custody.

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G.S. 50-13.2(b) lists the forms of order, and “sole custody” is not one of the words it uses

In North Carolina the statute describes what a custody order may do, not what it may be called. G.S. 50-13.2(b) provides that an order “may grant joint custody to the parents, exclusive custody to one person, agency, organization, or institution, or grant custody to two or more persons, agencies, organizations, or institutions.” What people call sole custody is exclusive custody in the statute’s language, and it is available to a person who is not a parent as readily as to a parent.

The same subsection requires the substance to follow the child rather than the label: “Any order for custody shall include such terms, including visitation, as will best promote the interest and welfare of the child.” Two orders both described as joint custody can produce completely different weeks for a child. Reading the terms of the order matters more than reading its heading.

Legal custody and physical custody answer different questions

Chapter 50 does not define legal custody or physical custody, but the working distinction sits behind almost every North Carolina parenting arrangement. Legal custody concerns decision-making authority — medical treatment, schooling, religious upbringing and similar decisions. Physical custody concerns where the child lives and the schedule under which each parent has the child. An order can be joint as to one and exclusive as to the other, which is the arrangement most people are describing when they say a parent has joint legal custody with primary physical custody to the other.

One consequence of the split is written into the statute. G.S. 50-13.2(b) provides that “absent an order of the court to the contrary, each parent shall have equal access to the records of the minor child involving the health, education, and welfare of the child.” Access to records is not conditioned on holding physical custody, and a school or medical provider that refuses a parent on that basis is applying a rule the statute does not contain.

Visitation is a lesser form of custody, not a separate category

G.S. 50-13.1(a) settles this by definition: “Unless a contrary intent is clear, the word ‘custody’ shall be deemed to include custody or visitation or both.” The Supreme Court of North Carolina described the relationship in Petersen v. Rogers, 337 N.C. 397 (1994), where the paramount right to custody was held to include the right to control the child’s associations, and visitation is treated as a lesser form of custody rather than as a right of a different kind.

Because visitation is part of custody, taking it away requires the same kind of reasoning as taking away custody. G.S. 50-13.5(i) provides that before denying a parent the right of reasonable visitation, the trial judge “shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.” The finding is mandatory, it must be written, and it must be in the order.

“Shall be considered” is not “shall be ordered”

The last sentence of G.S. 50-13.2(a) provides that “joint custody to the parents shall be considered upon the request of either parent.” A request by one parent obliges the court to weigh joint custody. It does not oblige the court to enter it, and it does not require the other parent’s agreement before the question is considered.

The decision itself still runs through the same test as every other custody question. G.S. 50-13.2(a) requires the award to go to whoever “will best promote the interest and welfare of the child,” requires consideration of all relevant factors including acts of domestic violence between the parties and the safety of the child and of either party, and requires written findings of fact reflecting those considerations. Because the test is the child’s interest rather than the parties’ requests, the form of the order is not controlled by what either parent asked for — a court that has been asked for exclusive custody by both parents is still deciding under G.S. 50-13.2(a) and may enter a different arrangement.

Conditions the statute lets a custody order carry

Beyond the allocation of legal and physical custody, G.S. 50-13.2 authorizes a range of terms that shape how the arrangement operates in practice. Each of them is a power the court may exercise, not a term that attaches automatically.

Abstinence from alcohol as a condition of custody or visitation, which G.S. 50-13.2(b2) permits rather than requires, together with submission to a continuous alcohol monitoring system of an approved type; where such an order is made it must direct the monitoring provider to report any violation to the court and to each party, and failure to comply is grounds for civil or criminal contempt
Visitation by electronic communication under G.S. 50-13.2(e), which may supplement visitation but “may not be used as a replacement or substitution for custody or visitation,” and the amount of which is not a factor in calculating child support and may not be used to justify or support relocation by the custodial parent out of the immediate area or the State
Permission for the child to be taken outside North Carolina under G.S. 50-13.2(c), with power to require bond or other security conditioned on the child’s return
Protective terms where the court finds that domestic violence has occurred, which G.S. 50-13.2(b) then requires to be entered in accordance with G.S. 50B-3(a1)(1), (2) and (3), with an absence or relocation caused by an act of domestic violence not weighing against the party who left
Terms addressing a service member parent, where G.S. 50-13.2(f) prevents past or possible future deployment from being the only basis for the best-interest determination while allowing the court to weigh any significant impact a deployment has on the child

Most parenting arrangements are agreed rather than tried

G.S. 50-13.01 states the policy of North Carolina to encourage focused, good faith and child-centered parenting agreements, to reduce needless litigation over custody, and to promote the active and ongoing participation of both parents in the child’s life where that is in the child’s best interest. The mediation machinery in G.S. 50-13.1(b) exists to serve that policy: in any district where a program has been established under G.S. 7A-494 — Mecklenburg County among them — a contested custody or visitation issue is set for mediation before or concurrent with the setting of a hearing. The duty is limited to those districts and to custody and visitation issues; alimony, child support and other economic issues may not be referred to the program.

An agreement reached there does not stay a private document. Under G.S. 50-13.1(g) it must be reduced to writing, signed by each party and submitted to the court, and unless the court finds good reason not to, “it shall incorporate the agreement in a court order and it shall become enforceable as a court order.” G.S. 50-13.1(h) closes the remaining gap: an agreement that results from mediation and is incorporated into a court order, but is called a “parenting agreement” or something similar, “shall nevertheless be deemed to be a custody order or child custody determination for purposes of Chapter 50A of the General Statutes, G.S. 14-320.1, G.S. 110-139.1, or other places where those terms appear.” The label on the document does not change what it is.

Neither form of custody is permanent

Under G.S. 50-13.7(a) an order of a court of this State for custody of a minor child “may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested,” subject to G.S. 50A-201, 50A-202 and 50A-204. Joint custody can become exclusive custody and exclusive custody can become joint, on the same motion-in-the-cause procedure and the same standard.

Shipman v. Shipman, 357 N.C. 471 (2003) sets out the two steps. The court must first find a substantial change of circumstances affecting the welfare of the child occurring after the order was entered; only then does it decide whether a change of custody is in the child’s best interest. Jurisdiction over the modification stays with North Carolina for as long as G.S. 50A-202 keeps it there — which ends only when a court of this State determines both that nobody in the statutory group retains a significant connection here and that substantial evidence about the child is no longer available here, or when a court of this State or of another state determines that the child, the child’s parents and any person acting as a parent do not presently reside in this State.

Common questions

Is “sole custody” a term used in the North Carolina statute?

No. G.S. 50-13.2(b) provides that an order “may grant joint custody to the parents, exclusive custody to one person, agency, organization, or institution, or grant custody to two or more persons, agencies, organizations, or institutions.” What people call sole custody corresponds to exclusive custody in the statute. The controlling question is what terms the order actually contains, because the statute requires those terms, including visitation, to be the ones that best promote the child’s interest and welfare.

Does asking for joint custody mean a court has to order it?

No. G.S. 50-13.2(a) provides that joint custody to the parents “shall be considered upon the request of either parent.” The request compels consideration, not a result. The award still goes to whoever will best promote the interest and welfare of the child, and the order must contain written findings of fact reflecting the court’s consideration of the factors the same subsection names.

What is the difference between legal custody and physical custody in North Carolina?

Legal custody is decision-making authority over matters such as health, education and religious upbringing. Physical custody is where the child lives and the schedule each parent has. Chapter 50 does not define either term, but G.S. 50-13.2(b) allows an order to be structured in either way, and it also provides that absent a contrary order each parent has equal access to the child’s health, education and welfare records regardless of the physical arrangement.

Can a mediated parenting agreement be enforced like a court order?

Yes, once it is incorporated. G.S. 50-13.1(g) requires an agreement reached in custody mediation to be reduced to writing, signed and submitted to the court, which shall incorporate it into a court order unless it finds good reason not to, at which point it becomes enforceable as a court order. G.S. 50-13.1(h) provides that an incorporated “parenting agreement” is deemed a custody order or child-custody determination for purposes of Chapter 50A, G.S. 14-320.1 and G.S. 110-139.1.

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.