Child Custody/Child Support

"…the most common custodial arrangement ordered by a judge will be primary physical custody in one parent (which might be “sole custody” if that parent is also given most decisionmaking authority), with the child having secondary time with the other parent."
First, child support and child custody are two separate issues. I believe that if you filed for child support, without custody being ordered by the court, and you filled out the paperwork to the effect that the children reside with you, then it is presumed that you have primary custody, but that custody is not court ordered. Your ex still shares legal custody with you if not physical. Your custody of the children should have been stated in the separation agreement and if it went to court it would have been a separate case from the divorce. Child support is based on custody and number of overnights, not the other way around. Your ex still has rights to visitations and it would be a good idea to write up a visitation schedule that you both agree on and stick with it.
If his new wife is pushing him to have visitations with his children, then count yourself lucky. Some new spouses do not care to have contact with children from previous marriages. If she’s pushing for this, then I believe she wants to get to know them too and make them part of their lives. That’s a good thing.
With the children being only one year old, they are going to be uncomfortable around anyone they are not used to, but he deserves a chance to get to know his children. They will not be able to get a true sense of their father if they spend time with him while you are around. You probably do have more say over visitations now at this age than you will when they are 10 or 15, but keep in mind that the only way for them to get to know their father is to spend time with him. And that will be easier for him in his new environment.
If his visitations are not going to be daily, then having him come over daily, even for a week is going to confuse the children. If he is going to have the children every other weekend, then he could start on a Saturday and have them for say 4-5 hours and then progress from there. The only way he is going become comfortable taking care of them and spending time with them is to do it.
Hopefully, an attorney will respond to this on whether custody can be enforced if there is no court order.
Good Luck

Dear LaReina:

Greetings. No, the child support order does not dictate child custody, nor does it mean that he has no custodial rights at all. Of course he has rights. No, only a child custody order can determine child custody if he abducts the children, not the child support order. However, the child support order would be evidence of the custodial situation as it stands if he were to abduct the children from the state of NC.

You would need either a court order or a separation agreement/parenting agreement to determine custody - not a statement or written document from you or an attorney. I hope that helps. Good luck.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.

I have one year old twins and I filed for Child Support in Feb 2006. The order became effective on June 1, 2006 with no arrears ordered. When I received the transcript in the mail the documents stated that I have primary custody and the children reside with me. The father finally decided that he wants to spend time with the children and I asked him to come by for a week consistently and stay a few hours so they can get to know him then he can take them a couple days a week for a few hours at a time. He initially agreed to coming over but then he stated we were too far. However, in my observation with the children, they seem uncomfortable around him that’s why I asked to spend time in their comfort zone before taking them out.

Now I recently found out that he got married and his new spouse seems to be egging him on about going to court for visitation. Now we’ve already discussed this in emails, all I asked was for him to spend a week.

I guess my question is, since the child support order states that I have primary custody (Wake County), this means he has no custodial rights at all? And if he was to, God forbid, abduct my children, that order stands as me having custody? And would it be in my best interest to obtain a written agreement regarding visitation? If so can he and I write something up and sign it and it be classified as legal or would it need to be notarized or completed by a lawyer? Any and all suggestions will be helpful.

Thank you