Custody, Visitation, and Our Armed Forces

When parents no longer live under the same roof, custody and visitation become an issue. Which parent should the child live with? Does the child get to choose who to live with? How frequently can the other parent see the child? Should both parents have access to medical and school records? These are some of the many questions that arise when parents of a child are no longer living together.

Members of our armed forces are presented with a whole slew of situations specific to them that civilians do not have to face. What happens if a parent is deployed over seas? How do PCS moves effect custody and visitation schedules? Can a court hold it against a parent if they are deployable in the military? These are just a few of the issues that may arise for our services members.

First let us start with the basics of custody and visitation. There are two forms of custody, legal and physical. Legal custody involves things like access to medical records, access to school records, and decision making for the child. Physical custody is who the child lives with and what sort of visitation the other parent may have.

There are several different forms of legal and physical custody. There is sole custody which means only one parent has it. If one parent has sole legal custody, that is the only parent who can take the child to the doctor, obtain medical and school records and make decisions for the child. These are just some of the many examples of what legal custody entails. If one parent has sole physical custody, that means the other parent can not see the child unless there are provisions made for some type of limited or supervised visitation.

There is shared or joint custody. Joint legal custody is the most common form of legal custody. When parents have joint legal custody, both parents have the right to take the child to the doctor, obtain medical and school records and make decisions for the child. Again, these are just a few examples of what legal custody entails. Joint physical custody of a child is defined by the North Carolina Child Support guidelines. The Guidelines state that “Parents share custody of a child if the child lives with each parent for at least 123 nights during the year and each parent assumes financial responsibility for the child’s expenses during the time the child lives with that parent.”

Lastly, there is primary custody. This mostly refers to physical custody. If one parent has primary custody, that means the child lives with that parent but has regular visitation with the other parent but is not with the other parent for more than 122 overnights per year. Visitation schedules come in all forms and fashions and is limited only by the parents’ imaginations. Parents can agree to whatever custody and visitation that they so desire.

When parents can not agree, usually one or both parents will seek the advice of an attorney and ask for court intervention. When a Judge makes a decision as to custody, both legal and physical, it is with the child’s best interest in mind. Factors a Judge will consider in making this decision is the size and cleanliness of each parent’s home, who else is living in the home, where the child has been living and going to school prior to the court action being filed, how the child’s grades are, what kind of support system each parent has, and/or are there drugs and alcohol involved. These are just a few of the many considerations.

There is no statute that gives a child the right to choose which parent he or she resides with. Depending on the child’s age, the Judge may have a private talk with the child with only the attorneys present or may allow the child to testify in open court. The Judge ultimately decides how much weight to give the child’s testimony and can but does not have to follow the child’s wishes.

Because members of our Armed Forces have unique issues as they related to custody and visitation, on October 1, 2013, the Uniform Deployed Parents Custody and Visitation Act went into effect in North Carolina. This statute can be found at N.C.G.S. §50A-350 et. seq.

As part of this new statute, a deploying parent is required to give to the other parent a minimum of seven days notice of deployment along with a proposed parenting plan to be followed while deployed. In order for a parenting plan to be effective, it must be signed by both parents and any nonparent who is given custody in that agreement and filed with the court. The agreement can include things like communication between the
deployed parent and the child and visitation for the deployed parent while back home on temporary leave. By statute, the agreement is temporary in nature and is terminated upon the deployed parent returning home at the end of the deployment period. The agreement can not create any independent rights or authority to any nonparents named within it. If the parents are not able to agree on a parenting plan, an expedited hearing can be requested to the Court so a Judge can issue a temporary custody order prior to the deploying parent leaving the State.

Another benefit of this statute is it specifically states that past and possible future deployments may not be considered in determining the best interests of the child during a custody hearing. But keep in mind, the court may consider any significant impact the child may have because of deployments.

Once a court order for custody is entered, it can be modified but only upon a showing of a substantial change of circumstances affecting the welfare of the child.

Unfortunately, there is no definition of this burden of proof. It is very fact specific and is up to the Judge to decide whether this burden has been met. Once it has been met though, the Judge can change the legal and physical custody of the child to ensure that the child’s best interests are being met.

Whether you are a civilian or a member of our Armed Forces, custody and visitation can be a complicated issue. Call and set up a consultation with an attorney at The Wunsch Law Firm for a more in depth discussion of your unique situation.

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