Jonathan Breeden: [00:00:00] On this week’s episode of The Best of Johnston County podcast, we do a special edition, Ask Jonathan Breeden Anything. And in this edition, I answer a bunch of questions about legal custody. What is it? What does it cover? If you have a custody order speaks to legal custody, is it joint or is it sole custody? If you don’t have a custody order, what kind of legal custody do you have? Listen in and find out.
Narrator: welcome to another episode of Best of Johnston County, brought to you by Breeden Law Office. Our host, Jonathan Breeden, an experienced family lawyer with a deep connection to the community, is ready to take you on a journey through the area that he has called home for over 20 years. Whether it’s a deep dive into the love locals have for the county or unraveling the complexities of family law, Best of Johnston County presents an authentic slice of this unique community.
Jonathan Breeden: Hello! And welcome to another edition of The Best of Johnston County podcast. I’m your host, Jonathan Breeden. And on today’s episode, we’re going to have a special edition [00:01:00] episode that we like to call, Ask Jonathan Breeden Anything. Where I, Jonathan Breeden, will answer questions usually about family law, which is what I do here at the Breeden Law Office and have for the last 24 years.
On most episodes of The Best Johnston County podcast, I, Jonathan Breeden, interview interesting guests from around the community leaders, small business owners, and great citizens about what they love about Johnston County? And why they love calling Johnston County home? On this episode, we are going to answer questions about legal custody, what it is? And what it is not? But before we get to that, I would like you to invite you to like, follow, or subscribe to this podcast, wherever you’re seeing it.
Whether it be on Apple, Spotify, LinkedIn, TikTok, Twitter, or any of the other places where The Best of Johnston County podcast is located on social media. So, that you’ll be made aware of future episodes of The Best of Johnston County podcast. The Best of Johnston County podcast comes out every single Monday, so be checking back for new episodes every week [00:02:00] with lots and lots of great guests.
And go back and listen to some of our previous episodes. I guarantee you will find neighbors, and friends, and interesting people talking about why they love Johnston County? And I bet, it’s the same reasons you love Johnston County. All right, Raena, you ready?
Raena Burch: I’m ready if you’re ready.
Jonathan Breeden: All right, I’m ready.
Raena Burch: All right. So, the first one’s pretty basic. What is legal custody?
Jonathan Breeden: Legal custody is the right to make decisions about your child’s religion, education, outward appearance, and major medical decisions. So, those are the things that are primarily covered in legal custody. It is not, where does the child spend the night? It’s not every other weekend.
It’s not 50/50. It’s not where is the kid on Christmas? Where’s the kid on Thanksgiving? Legal custody is about the things we just talked about. Where the child physically is, is physical custody. And that is laid out in a custody order. And it says, who has a child on which days [00:03:00] in even years, odd years.
That’s when you start thinking of every other weekend, you start thinking week on week off. But legal custody is the other part of custody, which is not physical custody. So, it is, where is the child going to school, major medical decisions, changing the outward appearance of the child, religious decisions, stuff like that is what legal custody is.
Raena Burch: Got you. So, if you wanted to take your kid to go get a drastic haircut, or some parents at 16, maybe a little third kid get piercing that’s not in an ear, that those kinds of things.
Jonathan Breeden: Correct. Correct. I would think that a piercing not in the ear, you can’t really get tattoos on minors. But any kind of tattoo in a minor, now there are certain religions that want to put you know, dots on children and stuff like that, you know, as part of their religion, that kind of stuff. Crazy haircuts could be particular, depending on what kind of haircut it is, I mean, some parents have opinions to whether their kids should have purple hair, pink hair, stuff like that.
I did have a [00:04:00] case a few years ago where we were arguing to the court. It was probably 10 years ago now, where the father did not want the child to have dreadlocks. He felt like that conveyed a connotation about the child, that he did not feel was the connotation that he wanted the child to put out there.
Yeah. The mother allowed the child to do it because the child wanted to do it, did not believe that dreadlocks conveyed negative appearance. I think more she just did it because she knew it would make the dad mad. you know, You get some of that. The court ultimately decided not to make the mom change the child’s hairstyle back, but did recognize, why the dad had a problem with that.
So, it was a close call. I think it was worth having the hearing. At least it was worth having that hearing with the court with the dad. but you know, The question is, what kind of legal custody do you have?
Raena Burch: Yeah.
Jonathan Breeden: Whether you were married or not, if you’re separated, and [00:05:00] you are on the birth certificate, and there is no court order anywhere, you are presumed to have joint legal custody underneath the law. So, if there is nothing, and most people don’t have court orders, then, and you’re on the birth certificate now, if you’re not on the birth certificate, you don’t have a whole lot of anything.
So, if you’re not on the birth certificate, and you’ve separated, and you want to have some legal rights, you need to get on the birth certificate. That means, you and the parent need to do the modeling, do an affidavit of parentage, or maybe you need to file a legitimation proceeding, or a paternity proceeding, or something to get on the birth certificate. Because if you’re on the birth certificate, then you’re an equal parent unless a court says you are not.
So, the presumption in the world is joint legal custody, and 99 percent of all parents have that, whether they have a court order or not. Because the only way you don’t have joint legal custody in North Carolina is, if you have a court order that says, you don’t have joint legal custody and that is extremely rare.
Anyway. So, we’ll [00:06:00] put it that way. So, if you’re on the birth certificate, then you have the right, whether you have a court order or not, a judge or whatever, you have the right to access the medical providers, the medical records, the school teachers, the school records, you have the right to have access to that, have parent teacher conferences, get report cards, be on ClassDojo when they send out, who’s going to bring the cupcakes?
I mean, All of that kind of stuff. You have absolutely equal rights to, and you have equal say in what actually happens with that child. Most children are relatively healthy. Now, some parents disagree on vaccinations, you know, sometimes courts have to get involved in that. But most kids relatively healthy, they get their vaccinations, they got to go, they want to go to school, you know, it’s kind of hard to get one of those releases because of religion.
So, that’s the kind of stuff that is covered by legal custody. Now, if you’re the parent who doesn’t have primary custody, either by court order or by verbal [00:07:00] agreement, you know, the other parent doesn’t have to give you the information, you have to go get it. But the school cannot deny it to you. The medical provider can’t deny it to you. They may try, but they cannot legally deny it to you.
Now, if you go to court, and you have a trial, and you get a court order that says, okay, and then a custody order is going to address physical custody and legal custody. and the physical custody, like we said earlier, is where’s the child going to spend the majority of his time, nights, weekends, holidays, stuff like that.
99% of court orders, even if one parent only gets every other weekend, are going to have joint legal custody. Because for the court to not award joint legal custody to a parent, it has to make specific findings as to why that would not be in the best interest of the child.
So, the presumption is joint legal custody. Reasons why a court would award one parent what they call sole legal custody, right? And that’s people get [00:08:00] confused is because they come in here and they say, I want sole custody. The word sole is only as it relates to legal custody. The word sole does not relate to physical custody, because physical custody is primary custody, secondary custody. And so, primary is the child spends the majority of its time with one parent.
Usually, non-custodial parent gets less than 124 nights in a year. Secondary custody is something between 100, the non-custodial parent hitting somewhere between 124 and 182 nights which is 50/50. And then joint is, physical custody is 50/50 custody. So, that’s just kind of how that goes. But legal custody is either joint or sole. So, when people are going to say, I want sole custody, we have to explain, okay, there’s sole legal, but there’s no such thing as sole physical.
Even if the other parent doesn’t get visitation under a physical [00:09:00] custody situation, the parent who has the child has primary custody of the child and the other parent just is not awarded any visitation. not sole physical, it is primary physical with no visitation. So, try to get that straight. That’s confusing.
Raena Burch: Yes, that can definitely be confusing for people.
Jonathan Breeden: So, back to the answer I started to give a minute ago. So, reasons for sole legal custody, the parents just cannot communicate and agree on anything. The relationship was full of verbal abuse, physical abuse, they cannot agree, they don’t see eye to eye, their communication leads to arguments.
Raena Burch: Maybe they don’t ask in the best interest of the kids.
Jonathan Breeden: They’re not actually invested as a kid to just try to get back at the other parent. And this was a bigger thing when I started than it is now, Okay. lives far away and isn’t available to help make decisions.
And now, you know, I started with you know, the invention of flip phones and bag phones you know, back in 2000, you know, and, and there [00:10:00] wasn’t zoom, and FaceTime, you know, and communication was much harder, phones had cords you know, stuff like that. So, Now, most everybody is accessible, so you don’t usually see a court find that they’re going to grant sole legal custody back based on lack of access, but that is a reason for that.
The other parent that does not get joint legal custody may have a drug or alcohol problem. So, they’re not always in their right mind to be making decisions, they may be drunk or strung out. And so, they’re not able to make good decisions because they’re not making good decisions for themselves.
So, these are all reasons a court could agree to grant somebody’s sole legal custody. What we do see more and more, which the North Carolina Court of Appeals is not a big fan of but it seems to be the trend is joint legal custody, and if the parents are not really agreeable, you give one parent final decision making authority [00:11:00] after they’ve communicated with the other parent.
Which to me, is basically sole legal custody. But, judges say, the parent should talk, they should endeavor to agree, and if they can’t agree, they will often, well, not often, but more often than they used to, but still not very often will say, okay, I’m going to give the mom or the dad final decision making authority.
You will see that in high conflict divorces where the parents do not communicate very well where one parent, it becomes clear to the judge is just being disagreeable to be disagreeable.
Raena Burch: Or dishonest?
Jonathan Breeden: Right. And they just don’t want, like, it’s just a way to make the other parents’ life harder, and it’s not actually in the message to the child. You’ll see it in sometimes situations like that. But in that situation, that other [00:12:00] parent still gets access to the providers, gets access to the medical records, gets access to the teachers, gets access to the school records and stuff like that.
Now, just because you have joint legal custody, doesn’t mean the school can’t trespass you from their property. Your right to access is one thing, but your right to come on the school property is up to the school. And the school absolutely, if you have done something that they don’t like, or they feel you’re not good for the safety of the students, or whatever can say, you are banned from coming on to this school’s property, but they still have to make the records and the teacher available to you to answer your questions and see the stuff.
But they can say, you are not allowed to come on this property anymore. So, sometimes, people get that confused. They can’t ban me from that school. They absolutely can trespass you from the school, but they cannot deny you access to the information unless the other parent has a sole legal custody.
[00:13:00] Have family law questions? Need guidance to navigate legal challenges? The compassionate team at Breeden Law Office is here to help. Visit us at www. breedenfirm. com for practical advice, resources, or to book a consultation. Remember, when life gets messy, you don’t have to face it alone.
Raena Burch: So, We already went over, obviously, like, what the different types of legal custody are, which you said was basically sole or joint, those are kind of your two options with a few vary, you know, nuances in there.
So, what happens if they have joint custody and they can’t agree on a decision regarding the kid?
Jonathan Breeden: Okay. well, You go back to your court order, if you have a court order. If you don’t have a court order, and you can’t agree on what happens, either parent can file a child custody action in the county where the child lives, or has lived for the previous six months, and go to court, and get a court order, and ask the judge to, I want them sole legal custody or order the child to go to school where they want the child to go to school or whatever.
So, if you don’t have a court order, [00:14:00] you have the right to go and seek a court order at any time. If you have a court order of joint legal custody, then the court order often will speak to what happens if you disagree. It could say, as we talked about a minute ago, that one parent gets to make a final decision making. It could say, and this is what is most common, Well, there’s three things that could happen.
The court will either give one party final decision making, which is basically sole legal custody. It will say, if the parties cannot agree, they will follow the recommendation of the provider. So, if the child is needing a surgery and the parents can’t agree as to whether the consent to the surgery, they would say, you know, Okay. if the doctor is recommending it, then the surgery should take place. The court often does that with vaccinations as well. If a doctor is recommending the child get the vaccinations that the vaccinations would take place. So, that’s, the second thing that could happen.
Raena Burch: Could that also happen with like therapists, and teachers and you know, if they’re teachers recommending [00:15:00] tutoring, or a therapist is recommending possible you know, medications or stuff like that?
Jonathan Breeden: Right. As far as the medications are concerned, often, yes. if a doctor is recommending Therapists usually can’t prescribe medicine, you got to go see a psychiatrist or whatever as far as that’s concerned. Or the court, which is the five, by far the most common thing. I would say, 75% of the time, we’ll say, if you can’t agree, you come back and we’ll, the judge will make the decision on an individual basis.
So, each side gets their lawyer. Each side pays their lawyer several thousand dollars. One side files a motion that says, we can’t agree you know, we do these all the time. The most common one is, where does the child go to school? And it’s often public school, home school, charter school, or private school.
We recently did a hearing where the, our client wanted the child to go to public school, and the mother wanted the child to go to a charter school. And this child was a child who was starting kindergarten, and they [00:16:00] could not agree. And so, we went and had a hearing, and the judge chose the charter school because the judge was led to believe that the charter school would have a smaller class size.
I don’t know that, that’s actually what’s going to happen, but that was the testimony. And so, that was the decision the judge made. Yeah. I think when it’s all said and done, the class sizes between the charter school and the public school are probably gonna be about the same. But that was the decision.
Raena Burch: Well, And that’s what a judge might take into account. Right? You know, It’s class sizes, school ratings, you know that’s true. Right? That all, all of those things.
Jonathan Breeden: But on the same day we were there, our clients, spouse was there in her own case, and the debate was public or homeschool. The dad wanted homeschool, and the mom wanted public school, and the court looked at everything and ruled homeschool.
What they thought what’s best for the child. And this child had been homeschooled before. you know, We did have a case a few years ago where a child needed a surgery on the back of his brain, he had a Chiari [00:17:00] malfunction. And it was a high conflict divorce, and the dad was against the surgery, not because he knew anything about the science or the kid needed it, but because the mom and the doctors felt like it was best.
And it was a way for the dad to mess with the mom. And so, we actually had to file for emergency custody because this child needed the surgery, and get the mom sole legal custody through the emergency, So the child, so that the surgery could take place. Now, we have had cases where the other side, we had another one of these recently where the other side was threatening to fire the providers that had done a good job for the kid. But another high conflict case.
Raena Burch: Yeah.
Jonathan Breeden: Another way to sort of, I think,
Raena Burch: Yeah. These guys aren’t on my side, so I’m going to find new guys.
Jonathan Breeden: Correct. Correct. We had to deal with that. And the court said that, no provider would be fired if both parents did not agree, unless the dad could come and show good cause to the judge, why a provider should be [00:18:00] fired? Which the dad has been unable to do up until this point. So, I hate that it’s that way. Yeah, you know what I mean? Yeah,
Raena Burch: That’s not fun for anybody. Right,
Jonathan Breeden: But that’s not good for anybody. But it is what it is. And ultimately, the kid safe. are suffering in, that situation. But the vast majority of the time when parents can’t agree, you know, we have several hearings, we didn’t do one this year, but it seems like every year, do we go to Christian school or public school? That kind of stuff, you know, there is that debate and judges have to make that decision. You know, And then with COVID, the COVID vaccine for kids, not required to go to school, not tested all that much on kids. Kids weren’t really getting that sick from COVID. yeah, We filed a couple motions about that. Yeah.
Raena Burch: When they have the option to go back, do they go back or do they stay at home?
Jonathan Breeden: Correct. So, I mean, These are things, and like I said, the courts don’t mind doing it. It is kind of expensive Mm-hmm . to get two lawyers and it doesn’t happen immediately. Right. Like, no. Like These hearings could take weeks or months to [00:19:00] get settled and you know, school’s starting, right? you know, If you’re thinking about, like, you want to have a fight about next school year, you need to be starting now, kind of now. you know, So that, you can have that hearing before August.
So, sort of Keep that in mind, but most people agree. you know, And of course, we’re going to see the outliers. We’re family lawyers. We deal with the high conflict stuff. But these are the things that do pop up.
Raena Burch: Got you. So, What happens if parents like, repeatedly can’t agree on a decision, like you said, you know, maybe they’re high conflict, one parent says no just because the other says yes, and this is an ongoing issue, and courts can kind of see that as, you know, when they’re constantly coming back into court, it’s kind of a big waste of everybody’s time?
Jonathan Breeden: Yeah. The court can appoint what’s called a parenting coordinator, which is often another attorney who does a lot of family law, or a counselor, or or psychologist, or somebody that’s trained and being a parent and coordinator to help be a sounding board between the parents to help them make good decisions.
And the court can give [00:20:00] that parenting coordinator the ability to choose where the kid goes to school and make some of these legal custody decisions that the parents can’t just agree on. And the parents have to pay this parent and coordinator 2, 3, $400 an hour to help make these decisions for them, but that person then comes in and makes the decisions more on a day-to-day basis.
So, the court doesn’t have to and cost the parents a lot of money, but that’s what happens when you just can’t get along.
Raena Burch: Yeah. So, I mean, It sounds like it saves everybody a lot of time and money if this is an ongoing issue.
Jonathan Breeden: Correct. Correct. And I’ve had this discussion many times with clients, but you know, some people are just believe that they are right and that the other side is wrong. And unfortunately, I see a lot of parents taking out their personal animosity towards each other for the end of the relationship over these types of issues as it relates to the kids, and nobody wins in that situation, least of all the child.
Raena Burch: Okay. Last question, when should someone seek legal advice regarding legal custody?
Jonathan Breeden: A person should seek legal [00:21:00] advice regarding legal custody as soon as they believe that their relationship may not work out. when they separate, not when they leave. When you start having the thought, I am not going to be with my child’s parent any longer or I don’t think I will be, you need to start finding out what your legal rights are.
Download my book at my website or call us, we’ll send you a book. Divorce Law in North Carolina talks all about different types of child custody. We have tons of blogs and pages on our website. You need to start educating yourself as soon as you have the thought that maybe this relationship with my child’s parent is not working out.
Don’t wait till you leave, as soon as you start thinking, even if you don’t leave, but if you start thinking that you might, you need to educate yourself.
All right
Yep.
Raena Burch: All right, I think that’s all I have.
Jonathan Breeden: All right. Well, thanks a lot. Thanks to Raena for coming on and helping us on this episode of The Best Johnston County podcast. If you have any questions about legal custody or any of the legal issues you heard on this podcast today, reach out to us at [00:22:00] 919-661-4970 or reach out to us at our website at www.BreedenFirm.com.
We’d love to be able to talk to you about your specific situation to see if we can help you. Also, remember, like, subscribe, and follow this podcast wherever you’re seeing it. Until next time, I’m your host, Jonathan Breeden.
Narrator: That’s the end of today’s episode of Best of Johnston County, a show brought to you by the trusted team at Breeden Law Office. We thank you for joining us today and we look forward to sharing more interesting facets of this community next week. Every story, every viewpoint adds another thread to the rich tapestry of Johnston County.
If the legal aspects highlighted raised some questions, help is just around the corner at www. breedenfirm. com.
