Visitation at the Discretion of One Parent

Selph v. Selph, 2023-NCCOA-______ (2023) (unpublished). 

1. Facts: Plaintiff and Defendant married in December of 2017 and separated on July 20, 2021. They had one child together, which was the subject of a custody action. Plaintiff retained counsel to handle custody, whereas Defendant proceeded on his own. The two ended up negotiating custody and voluntarily agreed on a schedule for permanent custody. This agreement was drafted, signed, notarized, and then entered by the court as a consent order. The contents of the consent order included a paragraph that memorialized the parties consent to enter into the custody schedule. This consent order allowed for Defendant to have visitation with the child at the Plaintiff’s discretion. Defendant appeals. 

 

1. Issue:  Did the trial court err in granting visitation to Defendant only by Plaintiff’s discretion? 

 

1. Holding:  No. 

 

1. Rationale:  Having visitation rights controlled by one party at their sole discretion is typically invalid and erroneous. However, there remains an exception to that general rule. That exception comes into play when the custody order is entered by consent. That is, if the parties have agreed, and made it apparent to the court that it was the parties’ joint agreement, then granting one party sole discretion in allowing visitation of the minor child with the other party is not erroneous. That is not to say that the sole discretion can remain indefinitely. All custody orders are modifiable, despite the label of “permanent.” The significance is legal; permanent orders require a showing that changed circumstances affected the welfare of the child. Talk to an attorney if you have questions about custody, as there can be some serious ramifications to consenting to schedules.