Artwork for podcast Best of Johnston County
Ask Jonathan Breeden Anything: Child Custody Types - Exploring the Complexities of Family Law
Episode 221st April 2024 • Best of Johnston County • Jonathan Breeden
00:00:00 00:31:10

Share Episode


In this episode of The Best of Johnston County Podcast, we dive into an important topic that affects many families: child custody types. Join us as we explore the different types of child custody arrangements and answer your burning questions about this complex subject. 

Whether you're a parent going through a custody battle or simply curious about the legal aspects of child custody, this episode is for you. 

Tune in to gain a better understanding of the different custody types and how they can impact children and families. Don't miss out on this insightful conversation on The Best of Johnston County Podcast!


Raena Burch: [:

Jonathan Breeden: Everything. I mean, I honestly, Raena that is the easiest people ask us that question every day in my office, and the easiest answer is everything.

The court is going to look at all parts of each parent. You can, you know, there are the more obvious ones. Where do the parents live? What are the living arrangements? Do the children have a bedroom? Is there room for the children? How close do the parents live to each other?

Work schedules of the parents can, do the parents have the ability to get the child to and from school? Do the parents have the ability to, feed the child dinner and help do homework and get the child to bed at a reasonable time. If you're a parent listening to this and you're working second shift, you're not gonna get very many weeknights because you can't get the child from school and you can't get the child to bed.

an experienced family lawyer [:

Jonathan Breeden: Hello, and welcome to another episode of the Best of Johnston County Podcast. I'm your host, Jonathan Breeden, and today we're having a special edition episode of the best of Johnston County Podcast called Ask Jonathan Breeden Anything.

If you follow this podcast regularly we have two different types of episodes on this podcast. The episodes that we do most commonly are, where I, Jonathan Breeden interview interesting people from the community, whether it be county committee commissioners, sports coaches, other small business owners about what they do and what they love about Johnston County.

where I am asked a series of [:

So, this is one of the special edition episodes where I'm going to attempt to answer the questions from Raena Burch, our social media coordinator.

You ready, Raina?

Raena Burch: I hope so.

Jonathan Breeden: Alright, let's see. I think I know the answers to these, but since I don't know what the questions are, I'm not promising.

Raena Burch: Well, I mean, you're batting 10 outta 10 so far, so, all right.

First question, What are the different types of child custody?

Jonathan Breeden: Okay, there are two different types of child custody in North Carolina, there is legal custody and there is physical custody. And I do think that a lot of people don't realize that and they come in and say, I want sole custody. What does sole custody mean? Right?

So, when we think about custody, it's really the two types. There's physical custody and legal custody.

stody, and that is literally [:

There's also 50 50, which we call. 2, 2, 5, 5, where it's every Monday, Tuesday at Mom's house, every Wednesday, Thursday at Dad's house and then every other weekend. And in that situation, the weekend attaches to the weekdays, which leads to a five-day period.

So, over a two-day period would be Monday at Mom's, Tuesday at Moms, Wednesday at Dad's. Thursday at Dad's. Friday, Saturday, Sunday, Monday and Tuesday with Mom. Then Wednesday, Thursday, Friday, Saturday, Sunday with Dad.

And so, those are the [:

So, physical custody is literally where they are if you have roughly equal amounts or where one side has it, the side that has the fewest has at least 12 nights a month to me, that is a joint physical custody situation, even if it is not exactly fifty-fifty, usually about 10 nights a month. I think anything more than 10 is joint physical, even though it's not 50 50.

Legal custody is the ability to make decisions and have access to school records, medical records, religious decisions, the changing of the outward appearance of the child, those are the things that would cover legal custody.

oled? These are all parts of [:

And parents disagree on whether a child should have covid vaccine. Some parents have religious beliefs about certain types of medical care, so that is part of joint legal custody. And then, access to the providers and access to their records.

And so, in a joint legal custody situation, which is the overwhelming vast majority of all cases in North Carolina, when you're thinking about joint legal custody the parties should endeavor to agree, they should discuss it and they should agree. If they cannot agree, then they have the option.

If they have a court order, that gives them joint legal custody of going to the court and asking the judge to make a decision as to what it should be, Mm-Hmm.

s in a joint legal situation [:

And that is still considered joint legal, even though if you're the one that doesn't have final decision-making, it's not gonna feel very joint to you. And then some judges in court orders if they order joint legal, say, if the parties cannot agree, they should follow the recommendation of the doctor or the education provider, as to whatever it is.

If the doctor says the child needs to have this surgery, if the parties can't agree and the order says you do what the provider says, then the child would have the surgery.

So that's legal custody and I think it's very important for both parents to be, I believe that joint physical custody in almost all situations is best for children, as I believe that joint legal custody is best in almost all situations for children because it keeps both parents involved and they have different perspectives.

I've seen even, you know, I'm married so I'm not divorced, but you know, my wife and I,

I don't always agree [:

So there are two types of custody, physical and legal.

Raena Burch: Yeah I,

believe in the same thing, I think it's best to look at all options, and obviously if you've got two different people bringing different options to the table, I think that's best for everybody.

Jonathan Breeden: Correct.

Raena Burch: All right. Number two. In your experience, do family court judges show preference to one parent over the other?

And why do you think if that, the answer is yes, why?

Jonathan Breeden: I don't believe they do in general. You know, just walk into any family court in North Carolina, particularly in the counties, we practice primarily in Johnston, Harnett and Wake. I do not believe the judges have a predetermined disposition to be more in favor of Mom than they do Dad.

Now, that has changed as [:

Raena Burch: a.

Jonathan Breeden: pre-thought that mom was better and I think we saw that, but as the judges have changed over now, basically a generation 20 years of me or more be practical law here, and the judges that I started with are now my parents age, 75, 76, you know, 80 years old.

You know, they had one view of the family, but now that the judges are largely in their 40's, in early 50's and some even in their 30's, particularly in Wake County you know, the family dynamic has changed. Mm-Hmm. Women have been working outside the home a lot more in the last 30 or 40 years.

t it. They go back to really [:

s, which are going on here in:

athers of raising kids in the:

Raena Burch: Yeah.

e to do 'cause it's a ton of [:

And you see much more joint physical situations, and you also see more Dads win custody when the Mom, you know, is not good and it's not best for the children. And so, I don't think judges now have any kind of preconceived notions. I think they look at the cases as the facts, do they sometimes maybe rely too much on what the parties have been doing. Yes, maybe sometimes.

But and oftentimes that might be that the Mom has had more than the Dad, but I think, you know, a case presented properly, if you could show it's an investor's child that it should be joint or that the father should have primary. I don't think judges have a problem doing that now.

So, I think there's a lot of people that think, well, the mom's always gonna win, and that's just not the case.


Jonathan Breeden: Correct.

Raena Burch: And work your way on either side from there instead of starting over here and you have to convince me to not be over here anymore.

Jonathan Breeden: Correct. Correct. That's been my experience particularly, especially over the last 10 years.


Raena Burch: All right. Three. What factors are taken into consideration when determining child custody?

Jonathan Breeden: Everything. I mean, that's the easiest, I honestly, Raena, that is the easiest people ask us that question every day in my office, and the easiest answer is everything.

The court is going to look at all parts of each parent. You can, you know, there are the more obvious ones. Where do the parents live? What are the living arrangements? Do the children have a bedroom? Is there room for the children? How close do the parents live to each other?

listening to this and you're [:

If you're a parent listening to this and you work third shift almost exclusively, it's gonna be a hard time having the child overnight during the week because you are not there. And the court is gonna choose the other parent over your girlfriend or your boyfriend or your Mom or whatever, if it could have the child of a parent, that's what it's going to do.

The court has to consider whether either or both parents have drug or alcohol problems and how that may affect their ability to parent the child and be present for the child and make good decisions for the child.

children having significant [:

They're gonna look at how many people are in the household.

Raena Burch: Yeah.

Jonathan Breeden: Are there 10 or 11 people in a house? And who are these people and why are there 10 or 11 people living there?

And sometimes that is a budgetary thing to make it possible for everybody to be able to provide for their own families. But is that best for this child to be sharing a small house or apartment with 10 or 11 people? If there's another house where there's not 10 or 11 people, and who are these 10 or 11 people and what relationship do they have to the child? And do these people have criminal records?

Raena Burch: Yeah.

Jonathan Breeden: And stuff like that. So the court's gonna look at that, the court's gonna also look at transportation. Do the parents have valid driver's license? Do they have working vehicles? Do they have a ability to get the child to and from school to and from any extracurricular activities, stuff like that.

not, that, it's not to, the [:

And be able to be there for the child, both emotionally and physically and financially and you know, if you're a parent that has to get up at 3 or 4:00 AM for work, you're not gonna get a lot of weekday time because the court's not going to support, you know, the child being left with somebody else to get 'em up bed, fed, bathed to school on time. I mean, that's.

Raena Burch: Left alone completely.

Jonathan Breeden: Left alone completely, correct.

Raena Burch: On the bus.

Jonathan Breeden: Correct.

Raena Burch: You know, can't expect a nine-year-old to get themselves up and out of the house and on the bus,

Jonathan Breeden: Correct.

Raena Burch: On the bus on time and to and from school and.

Jonathan Breeden: Right. And so, if you are a parent that has, you know, one of these schedules, you know, having family members that you can stay with can be helpful, you know, a lot of schools have before school care and some daycares have before-school care as well as long with after-school care.

ve to do, but you have to be [:

When you have the child, you have to be able to provide for the child as if you were the only parent.

Raena Burch: Yes.

Jonathan Breeden: And the court is gonna look at, okay, when you have the child, what is your plan? You know, who is getting the child for school? Who is getting the homework done? Who is feeding the child dinner? Who is putting the child to bed? What time is the child going to bed? What bed is the child sleeping in?

So everything is considered in a child custody case.

Raena Burch: Okay?

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: Four. Can modifications be made to child custody order? How would somebody do that and why?

ld custody order by filing a [:

Raena Burch: General practice.

Jonathan Breeden: That came out of a court of appeals case a few years ago, and it says a temporary order, remains temporary until it is reviewed, or unless it has been more than a year and nobody has made any effort to set it for permanent custody.

Or if a judge determines that it is a permanent order, by the way it is written, one way they look at that is it could be two years. And if it doesn't address holidays and summers, they often will not say that's a permanent order because a temporary order only addressed weekend, something like that.

you have a permanent custody [:

If you have a permanent custody order or a temporary order that's more than a year old that nobody's attempted to review, then you have a permanent custody order. To modify a permanent custody order, the moving party has to be able to allege and prove by clear cogent and convincing evidence that there has been a substantial change in circumstances that affects the welfare of the minor child that now makes that the current custody order not in the child's best interest.

And so, things that can be a substantial change in circumstances. The parents have moved and they no longer live close enough to each other, or they're going to move to where they're gonna be more than 20 or 25 miles apart, which makes 50 50 just about impossible.

One parent has [:

Mm-Hmm. Another substantial change we saw recently, the child has been disciplined inappropriately to where they are leaving marks and bruises on the child in the discipline that they are doing.

And sometimes we get where a parent just abandons a child, where there is some sort of custody schedule, join or not. And the parent has decided they're not gonna participate with this child anymore and they have gone away and they're not participating.

ably be modified, taken to a [:

Let's say, you're a parent who had a drug or alcohol problem and a grandparent or the other parent ended up getting primary custody and you got very limited visitation, if any at all, and just because you now are sober, does not mean that there's been a substantial change that affects the child, per se, if the child is doing fine in whatever home they're in.

Mm-Hmm. You know, that's something that I think people can be a little surprised by because it really is, it has to affect the child and I encourage all parents to get better, particularly if you weren't better and you had some issues that you needed to address and you've addressed them, but you cannot just assume because you addressed your issues if the child is doing fine where they are that the court made, say that's not a substantial change.

Raena Burch: Yeah. No, parent's perfect, but we can always strive to be better for our kids.

Jonathan Breeden: Correct. [:

So yeah, so I mean, it's all, like I said, back to the first question, everything is sort of included, all things are being considered and that's just kind of how the courts go about doing it. But in order to modify a permanent custody order, you have to file a motion to modify and you have to allege and approve a substantial change in circumstances that affects the welfare of the minor child.

And you need to be very clear about how whatever is changed is affecting the child and not just the parent.

Raena Burch: Yes. Okay. And just a quick follow up.

So when you say, you know, if one parent is basically elected to stop participating in their visitation time or their time with the kid. Is there a,

timeframe that you can be like, you know, they, at six months, a year, is there a general,

eeden: I mean, there's not a [:

Raena Burch: Yeah.

Jonathan Breeden: That's not what they want to do, you know, what is frustrating if you're the parent who has a, parent who has stopped participating and why you should file a motion to modify is that, order that gives that parent every other weekend or whatever it is.

It's still in effect until there's an order that says it's not.

Raena Burch: Yeah.

Jonathan Breeden: And what is frustrating to us and our clients is if we represent the Mom and the Dad has decided not to visit for three months, and then he shows back up and says, I want this weekend, and the mom's already planned something else because he hasn't been there for three months, that's frustrating to the parent, that's frustrating to the child as well.

And that's why if you have somebody who's stopped participating, who's not visiting consistently, you should file a motion to modify. And get the order modified so they can't try to got you visit with their kid. That's not best for the parent and it's for sure not best for the child.

preference in child custody [:

Jonathan Breeden: The answer is yes and no. A child may state a preference, and no, there is not a minimum age. I think the standard thought out there in the world is, when the child is 12, they can pick who they wanna live with, and that is not the law and that is not how things are often gonna go.

The courts are willing to listen to any witness that a party may want to call, including a child, as long as that witness knows the difference between a truth and a lie and can tell the judge that they know the difference between a truth and a lie and is mature enough to state an opinion that is their own and not one that is coerced or bribed or, and I got tons of stories.

I mean, we could do,

Raena Burch: Oh no doubt.

n, you know, coached up. You [:

You know, and the kids come in there and they're ready to go. But the thing is, they're kids and a good lawyer, like lawyers that bring law office within about three questions, they're gonna have this kid so confused that they're not gonna be able to get their story straight, because what they've been pumped up to say is not actually the truth.

Raena Burch: Yeah.

Jonathan Breeden: And they don't know how to handle it once, you know, and that's the part is they say, well, I'm gonna take the kid in there and I don't get the kid to go in there and say they never wanna see their father again. Well, okay, you could do that, but the father's attorney is gonna get to ask that kid questions and find the basis for that opinion.

And oftentimes the basis of that opinion is not very deep other than, my Mom kind of told me to come in here and say this.

Raena Burch: Yeah.

Jonathan Breeden: And you know, the court's gonna see right through that. So ultimately, and the reason that children don't get to pick. Right?

nd it is in the judge's sole [:

judge that their father was [:

So that part Yes, absolutely be considered. These children love their father, they wanna see him get help but they're scared when he is drinking.

Raena Burch: Yeah.

Jonathan Breeden: And they came and told that judge that, and as a result, that father is, time has been limited, he's gonna have to go get some treatment. And if he does those things, I think the court will be open to giving him more time.

So, you know, it depends on kind of what they're saying, but no, they do not get the absolute right to decide. Where they're going to live because they don't know what's best for them.

Raena Burch: Yeah.

Jonathan Breeden: They're minors and they may very well, and I've seen this a lot of times, wanna go with the parent that's got the least rules that lets them be on TikTok and Instagram and Snapchat all the time. The ones that let them go on car dates when one parent might, the one, the parent I did one, one time where, they wanted to go with the other parent because that Mom basically let them party and drink alcohol and dress and all goth and paint their faces white.


Who wouldn't want to go to a Mom, that allowed you to party and drink alcohol and, you know, have piercings in your nose and be golf and all of that kind of stuff, which is fine. I'm not passing judgment on that but I think that judge decided that being that way was not best for that child and gave custody to the father.

Raena Burch: Yeah.

Jonathan Breeden: And so, you know, that's the thing. So, I mean, the judges are gonna do what they think is best. But you know, if kids get older and they, you know, and the thing we see a lot of is if you've got a situation where, one parent does not have 50 50 or does not have substantial time when the children are little and now they've gotten older and they've gotten to be sort of teenagers and they would like to spend more time with the other parent, you know, before they go off to college.

Raena Burch: Yeah.

urderer, like it is a decent [:

Raena Burch: Yeah.

Jonathan Breeden: You know, has a lives in the area, has a work schedule that works. Can financially provide all the things, going back to question two that we were talking about, what's, you know, what does the court consider everything?

Raena Burch: Yeah.

Jonathan Breeden: Then the court, more than likely, like, you know what, this, I can see why the child wants to do this. It makes sense, this parent seems like a pretty good person. Why don't we give that parent some more time? Because that's what the child's asking for and that's what's best for the child.

So once again, there are no hard written rules here. And you know, this is not math that I wasn't great in math, I mean, this literally is whatever the person wearing in the black robe decides, you know, we learn those judges, we're in front of them, the Breeden Law Office every week, we begin to learn their preferences, we know them from when they were lawyers and some of them are friends of ours. And so we know, what makes them tick and what they like and what they don't like.

nt things that we know these [:

Some judges have a problem with that, some judges do not. That's where it's important that you hire lawyers and law firms that are routinely in these courts, that know these judges, that know what they're looking for because the, judge can do really anything they want to do and it's very important to have that sort of knowledge.

very long time, you've been [:

I mean, so I know kind of what makes 'em tick, I know the kind of evidence that they're gonna be receptive to and that's the kind of evidence we go and present the best case for our clients.

So, that's all stuff to keep in mind as you prepare for your case go through your case.

Raena Burch: Okay. I think that's all I got for today.

Jonathan Breeden: That's all you have for today. Okay, cool. Well, anyway, I hope your listeners got a good value out of the special edition of the Best of Johnston County Podcast.

at the Breeden Law Office at:

l free to continue to listen [:

New episodes come out every Monday and most of the episodes as we stated earlier, are me Jonathan Breeden, interviewing interesting people from the Johnston County community about what they love about Johnston County as much as I do.

So go back, listen to some of those episodes. Tune in next week for future episodes, and until next time, I'm your host, Jonathan Breeden.

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.

ects highlighted raised some [:





More from YouTube