Do I Need a Legal Document Establishing Physical Custody of My Child?

A dispute between parents over child custody or visitation can arise at any time when the child is born outside marriage or there is a separation or divorce. Even if the parents have a verbal agreement or mutual understanding that one parent should have primary physical custody of the child, it is in the best interest of the child and the parents to have a written custody agreement or court order setting forth each parent’s rights to custody or visitation of the child.

North Carolina law makes a distinction between “physical” and “legal” custody of a child. The term “physical custody” refers to the parent who has actual physical care and custody of the child. “Legal custody” of a child refers to parental rights to make major decisions on behalf of the child, such as those pertaining to the child’s health, education, religious upbringing, and day-to-day welfare. For example, a court may order, or the parties may agree, that one parent should have sole physical and legal custody with the other parent having visitation rights, or the parties together should have joint legal custody with a sharing of physical custody.

In North Carolina, without a valid written custody agreement or a court order, both parents have equal rights and responsibilities with regard to the child. This means that even though a parent may have primary physical custody of a child by verbal agreement or mutual understanding of the parties, the noncustodial parent still has legal rights and unrestricted access to the child. Serious problems can arise if the noncustodial parent decides to change the custody arrangement on a whim or remove the child from the jurisdiction of the child’s home state.

Many parents elect to enter into a child custody agreement establishing custodial sharing arrangements and decision-making authority. In North Carolina, child custody is always subject to determination by a court having jurisdiction regardless of whether the parents have a custody agreement or an existing court order. Although a written custody agreement is admissible in court to create a presumption that the parties believed at the time they entered into such agreement that the custodial arrangement they agreed to was in the best interest of the child, a court having jurisdiction always has the authority to enter an order for custody and/or visitation that it believes is in the best interest of a child. A custody agreement, however, can carry some weight in the event either party petitions the court for an order adopting or modifying the custody agreement.

A custody agreement or court order establishing each parent’s custodial rights to legal and physical custody of the child will help to reduce conflict and set the stage for a less stressful and more harmonious relationship between the parents. A court order establishing legal and physical custody rights can provide parents with the best legal protection since the court has authority to enforce its orders.

This article is for information purposes only and is not to be considered or substituted as legal advice. The information in this article is based on North Carolina state laws in effect at the time of posting.