By: Jacqueline Keenan
How was custody established?
The first step in changing child custody is knowing how it was established. If you and your ex are working off of a separation agreement or something that you decided outside of court, then one person needs to request the change. This should be done in writing, but because it is not a court order, it is up to the other party to decide whether or not they are willing to make a change. If that fails, then it may be time to bring the issue to court and have it put in a court order.
If custody is determined through a court order, then the decision to make a change to a custody arrangement rests with the judge. The judge will decide if there is a substantial and material change in circumstances, and if so they may modify the order.
Substantial and Material Change
In determining child custody, the goal of the court is always to look out for the best interest of the child, regardless of what the parents may want. So, when a judge is asked to change an order that has already established what serves the best interest of the child, they will need a very good reason. Because of this, the judge will look at what has changed since the original order was written. If they find a change that is both substantial and material, then they may be persuaded to make a change.
Substantial and material change can include one parent losing a job or moving out of state. A new marriage or relationship that is having an effect on a child’s life may also be considered.
Modifying child custody can be a complicated process. If you are interested in making a change to your custody agreement or order, contact Adkins Law to set up a consultation and decide your next steps.
In preparing answers to requests for admissions, the answers must be made in good faith and answer the request in detail. Answers that do not accomplish this may be stricken at the court’s discretion and sanctions applied. The following excerpted Rules and cases support the above conclusion. If the defendant in your case offered only blanket denials, and you are able to provide documentation showing that his answers were not complete or made in good faith, it is likely that a judge would be amenable to striking the answers, thus making them admissions, and imposing sanctions such as attorney’s fees. If the opposing party has a good faith belief that their denials were correct, then they will likely not be sanctioned. Of particular interest in Rule 37 (c), which explains the grounds under which a judge may choose to sanction for failure to admit.
NC Rules of Civil Procedure
If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder.
If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
N.C. Gen. Stat. Ann. 1A-1, 36
Rule 37 (c)
Expenses on failure to admit.--If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay to him or her the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (i) the request was held objectionable pursuant to Rule 36(a), or (ii) the admission sought was of no substantial importance, or (iii) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or (iv) there was other good reason for the failure to admit.
N.C. Gen. Stat. Ann. 1A-1, 37
Rule 8 (c)
(b) Defenses; form of denials. -- A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part of or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all its averments, he may do so by general denial subject to the obligations set forth in Rule 11.
N.C. Gen. Stat. Ann. 1A-1, 8
Wachovia Bank of N. Carolina, N.A. v. Bob Dunn Jaguar, Inc., 117 N.C. App. 165, 174, 450 S.E.2d 527, 533 (1994)
Below is the process of filing for a restraining order also known as a Domestic Violence Protective Order or a Civil No-Contact Order.
1. Go to the courthouse:
Go to the office of the clerk of civil court or the magistrate’s office. Tell them you need to file for a restraining order, protective order, DVPO or Civil No-Contact Order. They should make sure you get the forms you need.
2. Fill out the complaint in detail:
(Do not sign it until you are before a notary or clerk of court)
Just remember: you are the plaintiff and the abuser is the defendant.
When filing out the paperwork be sure to provide a brief but complete summary of the most recent abuse you have suffered make sure to use specifics and details. Provide the dates that the incident(s) occurred.
The key is to give a clear picture of the abuse to the judge who will decide your case. You also want the judge to know what relief you are seeking.
3. Fill out the summons:
In addition to being served the complaint, your abuser will need to be served summons to appear in court. Try to include the abuser’s name, address and other contact information in the paperwork, if known. The sheriff’s office will serve the complaint and summons on the abuser. The sheriff’s office also will serve the notice of hearing and a copy of the temporary protective order.
You can help the sheriff’s office by filling out a form that identifies your abuser. This identification can include:
(Physical characteristics (height, weight, hair color, eye color),Driver’s license number, Social Security number, and/or Employment address)
You will also need to list your name and a safe mailing address and phone number.
Because the sheriff serves the abuser, you do not need to have contact with him/her. If the sheriff’s office cannot serve your abuser on time, your hearing will be rescheduled.
4. Seek a temporary protective order:
At the time you fill out the complaint and summons, you can also seek an ex parte/temporary protective order. This means that the abuser does not need to be present for a hearing. You can request it by checking a box on your complaint form. Then you go before a judge and explain why you or your children are in immediate danger and why this order is needed.
This is an emergency order.
Once it is granted, it takes effect immediately and typically lasts 10 days (which just the right amount of time for you to pursue a permanent order).
Keep this order with you at all times. Leave copies with your employer, your child’s school or daycare, and everywhere else you or your children can be found during a typical day.
5. Attend the hearing:
When you file the complaint/summons, you will be given a date and time for the hearing on your order. Your abuser will receive a notice of the hearing with this information.
You must attend the hearing. Your abuser has a right to attend as well. If the abuser does not attend, the court may proceed or elect to reschedule the hearing. You should have an attorney representing you at this hearing. At the hearing, you will need to show the court that the abuser has committed an act of domestic violence, stalking or nonconsensual sexual conduct. If the court finds that this has occurred, the court must grant the order
If you are in need of representation for your hearing, Adkins Law can help you. Christopher Adkins and Sarah Bennett are attorney's in the Lake Norman area that specialize in Family Law and can help you. Call our office today to set up a consultation with one of our attorney's.