Clarification on a few issues

I am three months from completing the 1 year seperation before filing for divorce with my soon-to-be ex. We have a separation agreement that still needs to have a custody ammendment added but they haven’t been filed with the state. We needed to make changes to the initial agreement because he moved out of state temporarily after being committed. He has mental health challenges that he is not being treated for and was, before our seperation, struggling with a drug addiciton. We are still getting along very civially and I want to maintain that to the best of my ability. While finishing up the custody I would like to have joint legal custody but identifiy myself as the sole physical care giver for our children. First is that possible? I’m not sure on what rights he will have and not have with legal custody but not joint physical. If I feel he is using again will that arrangement allow me to keep him from seeing the children during scheduled visitation? Also, I have recently been given a promotion that could potentially lead me out of state. Would that arrangement (sole physical custody) allow me to take the kids with me without his consent?

I am also dating someone right now, we began seeing each other three or four months into my seperation. What potential issue could that create for me and the person I am dating?

Getting another party to voluntarily agree to no physical custody is virtually impossible. To get a court order that doesn’t include visitation is also very difficult.

If you both have legal custody, you would need his permission to move the children.

I’m sorry, I don’t know that I was being clear. I don’t want to keep him from seeing the children. He currently has visitation two nights a week and every other weekend. I guess what my question was is does that schedule arrangement mean that I am the primary care giver? Does being the primary care giver mean that I have physical custody of the children? If I that is our schedule and I am the primary care giver but he has access to medical, education, etc. records for the children is that joint legal? And then if we have joint legal, but I’m the primary care giver would I still need his permission to relocate out of the state?

I’m sorry, I hope that was more clear. :slight_smile: Thanks!

** not an attorney **


If it is positioned to him in a way that makes sense, it’s quite possible he will allow for it. My ex gave me sole physical and sole legal custody. He lives out of state. This does not affect his visitation at all. We have 2 different visitation scenarios based on whether he is living out of state vs. within a 50 mile radius. The separation agreement also spells out that he will have full access to school and medical records, etc.

With the sole physical and sole legal custody, it was just explained that it would be easier this way since he was living out of state and wouldn’t be involved in daily things like medical decisions, school decisions, etc. As long as the visitation was what he wanted, he didn’t care about the wording of the custody in the agreement.

In NC, if both parties have any amount of time with the children, they are considered to have joint physical custody. One party may have more time, meaning they have primary physical custody. If both partie have joint legal custody, that means decisions about where the live, what schools they attend, etc., must be arrived at jointly.