child custody

Child Custody

One “My parents’ divorce was disruptive and disorienting to me. It was hard to move back and forth between my mom’s house and my dad’s and adjust to a new routine. However, once we had readjusted, it was clear that our family could be happier in a new configuration, and it ended up being the best thing for all of us.”
C., age 20
of the most painful parts of ending a marriage is considering the impact it will have on the children. Usually, both parents are afraid of hurting their children, but they are also afraid of losing them. Unfortunately, with all the tensions and emotions swirling during this time, it is not uncommon for one parent to threaten to “take” the children from the other.

In fact, people rarely “lose” their children in a custody battle in North Carolina. Unless you or your spouse has a demonstrated history of abuse or neglect, the law favors maintaining strong bonds between parents and children.

It is Unusual for Courts to Deny a Parent Custody

Courts can and do award primary custody to one parent and visitation to the other parent, however. They can also order that custody be shared equally, or nearly equally, between the parents. They can order that visitation with the non-custodial parent be supervised in the case of a parent with a substance abuse or other mental health disorder, where the children’s well-being might be at risk. But only in the most unusual and tragic cases will a court give custody of the children to one parent while leaving the other with no access to the children.

For most families with healthy, functioning parents, either joint custody or primary custody with ample visitation is the likely outcome. The decision depends on the court’s determination of what is in the best interests of the children. This is an important point to remember: The parents’ convenience is not the question in determining custody; “Although my parents’ divorce was painful for my sisters and me, it is so much better to see both of my parents in loving, fulfilling relationships rather than one filled with anger and hate. I never wish my parents had stayed together and am happy to have a blended family and two places I can call home.”
I., age 20
the only question is what is best for the children.

Legal vs. Physical Custody

The law distinguishes between legal custody and physical custody. Legal custody refers to the power to make decisions regarding education, medical treatment, financial decisions, etc., on behalf of the child. In most cases, unless there is some clear reason not to do so, legal custody will be joint, meaning that the parents have to communicate with each other and cooperate with each other on major decisions affecting the children’s lives.

Physical custody refers to the actual responsibility for the child’s daily care and supervision. It is calculated by the number of overnights with each parent, usually on a 14-day or 30-day schedule. For equal shared custody, many families split each week, with the children spending three days in week 1 with one parent and four days with the other, and then reversing the schedule in week 2. Some families prefer one week with each parent, with a dinner with the non-custodial parent in the middle of the week. Some choose to have the children live with one parent during the school year and with the other during the summer, with visits with the non-custodial parent in between. The type of custodial arrangement may change over time as the children get older.

High-Conflict Families

More frequent exchanges require a higher degree of cooperation between the parents, but all shared custody requires the parents to work hard at working together, no matter how they feel about each other. Because of this, joint custody is not usually in the children’s best interests where there is a high degree of conflict between the parents. High-conflict families require more structure and less communication; they therefore lose a lot of flexibility.

Children (and Parents Too) Win with Out-of-Court Negotiations

In general, and for most children, divorce itself is not a disaster; being torn for years between fighting parents is the disaster. Minimizing the effects on the children is “I had two parents who loved me, and I still have two parents who love me.”
S., age 17
the biggest reason to come to an amicable resolution of all of the issues surrounding divorce – and a negotiated agreement gives you the maximum degree of creativity and flexibility in addressing your children’s needs. Going to court and suing for custody means that a judge, who knows you only from the evidence presented in court, will make a decision that will determine the daily life of your family for years to come. Sometimes this is appropriate and necessary; but where the parents can work together to come up with a plan, the children will do better, the parents will do better, and it will cost thousands of dollars less. Everyone wins.


April M. Burt is a transactional lawyer. Katherine Langley and Chad Anderson are trial lawyers. These Asheville-based attorneys focus their practice in the areas of business law, employment law, estate planning, and transactional law. They serve clients in the Western North Carolina communities located in Buncombe, Henderson, Haywood, Madison, and surrounding counties.


Burt Langley, PC | 149 S. Lexington Avenue | Asheville, NC 28801 | P: 828-367-7090 | F: 828-318-8899