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Legal Custody Explained: Rights, Decisions, and When to Seek Advice
Episode 6130th December 2024 • Best of Johnston County • Jonathan Breeden
00:00:00 00:22:48

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In this "Ask Jonathan Breeden Anything" episode, we dive deep into the topic of legal custody - what it covers, the different types, and what happens when parents disagree. If you're facing custody issues or thinking about separation, this episode is a must-listen. I share real case examples and practical advice to help you understand your rights and make informed decisions. 

Don't miss this informative episode - tune in now!

Transcripts

Jonathan Breeden: [:

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.

ng to have a special edition [:

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.

for new episodes every week [:

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.

ho has a child on which days [:

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 [:

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.

ot, if you're separated, and [:

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 [:

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.

by court order or by verbal [:

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.

right? And that's people get [:

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.

visitation under a physical [:

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.

bag phones you know, back in:

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.

al decision making authority [:

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?

n that situation, that other [:

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.

[:

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.

ou don't have a court order, [:

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.

hey're teachers recommending [:

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.

rting kindergarten, and they [:

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.

f his brain, he had a Chiari [:

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.

ge, why a provider should be [:

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?

ould take weeks or months to [:

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 [:

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?

: A person should seek legal [:

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.

st today, reach out to us at [:

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.

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