North Carolina General Statute § 50-13.7 states that “[A]n order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.”
NCGS 50-13.7 states that an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. In fact, the Court of Appeals has consistently held that “the trial court commit[s] reversible error by modifying child custody absent any finding of substantial change of circumstances affecting the welfare of the child.” Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013) (quoting Hibshman v. Hibshman, 212 N.C.App. 113, 121, 710 S.E.2d 438, 443 (2011)).
Importantly, a finding of contempt will not lead to a modification of custody or visitation. As stated by our Court of Appeals in in Woncik v. Woncik, child custody “cannot be used as a tool to punish an uncooperative parent.” Only when the Court concludes that the interference with visitation was itself a “changed circumstance” is there merit to modify custody and/or visitation. Our Court of Appeals has stated that “A decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. To hold otherwise would invite constant litigation by a dissatisfied party so as to keep the involved child constantly torn between parents and in a resulting state of turmoil and insecurity. This in itself would destroy the paramount aim of the court, that is, that the welfare of the child be promoted and subserved.” (Davis v. Davis, 748 SE2d 594 (N.C. App 2013) citing Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968)).
In Davis v. Davis, the trial court made findings that the parties had a dispute about the custodial schedule and Defendant lost his temper and inappropriately physically disciplined the minor child. The Court still found that there was not a substantial change of circumstances sufficient for the Court to grant Defendant’s motion to modify custody. (“The trial court did not find that defendant's “inappropriate [ ] discipline[ ]” of his daughter rose to the level of a substantial change in circumstances affecting the welfare of the children. The trial court also did not find that the scheduling disputes constitute a substantial change of circumstances. Therefore, the findings of fact and conclusions of law are insufficient to support its requirement that defendant obtain anger management counseling and its modifications of visitation. Accordingly, we vacate those portions of the trial court's order modifying visitation and ordering defendant to attend anger management classes and we reinstate the visitation schedule set out in the 2003 custody order.”) Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013).
Thus, it is not necessarily easy to modify an existing order for child custody. To do so, you have to prove that a substantial change of circumstances have occurred that impact the minor child, and that it is now in the child’s best interests to have the custody schedule changed. A court cannot modify a child custody order just because you are dealing with a difficult person. That person may be difficult with you, and at the same time be a great parent for the child.
If you have questions about modifying a child custody order and need to speak with an experienced child custody attorney, please click here to contact Adkins Law.
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.
Adults who plan their vacations in accordance to their work schedule experience difficulty when attempting to coordinate with their family’s busy activities. This is especially true with adults who share custody of their children with another parent. Parents who take their child across state lines in violation of a custody order can expose themselves to contempt of court charges and, potentially, charges of parental kidnapping.
In some cases, adults share custody of their children under a court order that addresses the issue of out-of-state travel. In the event that the order allows or in does not prohibit traveling across state lines, a parent is permitted to travel with their children from state to state. However, it is imperative that traveling parents look for restrictions on their custody order. A common restriction in such an order is that the traveling parent must receive consent from the other parent to take the kids out of state. Even if the order does not require it, it is best to get the other parent’s consent in writing. Written consent could be helpful in case a dispute arises in the future.
While traveling out of state, keeping the other parent informed of the itinerary can help ease tension. In most cases this is not a requirement. However, if the parent fails to abide by the terms of the court order or written permission of the other parent, the traveling parent could face civil or criminal penalties. A federal or state warrant may also be issued and the parent may face charges under the International Parental Kidnapping Crime Act.
Custody Order Not in Place
In some instances, parents want to travel out of state with their child, but custody is still pending or no order is in place. In this case, it is wise to seek the consent of the other parent or receive court approval. Establishing a record of unilateral actions without consulting the other parent can make a judge believe that that parent will not be able to effectively co-parent, and could potentially lead to modification of an existing custody order.
Commonality of Modifying Alimony
After a court grants alimony (either temporary or permanent), it may later be modified by the court or terminated completely depending on the circumstance. There must be a substantial change in circumstances in order for court to modify an existing agreement. Courts have wide discretion in how they define situations that constitute a substantial change in circumstances to warrant a change in alimony. It is not common for a court to modify an existing alimony award. North Carolina submits to the partnership theory of marriage, where both partners have an equal obligation to provide financial support to each other during marriage. This theory extends to post-separation spousal support.
Spousal Support: Payor and Recipient
During the process of modifying alimony agreements, an individual is either the payor or the recipient of spousal support. These roles are determined objectively depending on which partner was financially superior in the marriage. The payor is typically the partner who will be giving money to the recipient or dependent partner. The amount of spousal support depends specific factors, such factors include: the duration of the marriage, the role of each spouse, and the age of the partners.
Modification of Spousal Support
Either party has the ability to initiate modification of an award. The party who moves for a modification of alimony has the responsibility of showing a substantial change in circumstances that warrant change in spousal support. Typically, the party will either move for either upward modification or downward modification.
Questions about child custody and visitation are frequent during and after divorce, and when establishing paternity. In some cases, due to changed conditions or events, or the need of one parent to move, orders relating to child custody or visitation may need to be modified. Careful wording is needed for a strong and fair revision to a preexisting order. In North Carolina, there are specific situations that allow for the modification of a child custody order.
Requirements for Modification of a Child Custody Order
For a child custody order to be modified there must be a custody order already set in place. A separation agreement that has not been incorporated does not meet the requirements of a court order. A parenting agreement or a consent order that has been signed by a judge and the parents (or legal guardian) constitutes as a court order. Likewise, an order that has been registered to allow modifications is also an order that can be modified.
The legal standard in North Carolina is the best interest standard - what is in the best interests of the minor child. As the name implies, the best interest standard places the child’s welfare above all else by allowing the court to make a decision in the child’s best interest. Additionally, if a judge hears a child custody case where there is no order in place or there is only a temporary order, this legal standard is utilized.
The best interest standard is only considered when there has been sufficient evidence to prove that there has been substantial change affecting the child. The district court judge must find substantial change of circumstances prior to changing an existing order. The party seeking modification has the burden of showing changed circumstances. Even though the party seeking modification has the obligation to provide the court with any pertinent evidence relating to the best interest standard, the trial court has the ultimate responsibility of requiring production of any evidence that may be competent and relevant to the issue. Therefore, the best interest standard is more inquisitorial in nature than adversarial.
There is no statute of limitation that limits the amount of time that must pass before a motion to modify may be filed as long as the person filing the motion can meet their burden and prove a substantial change of circumstances.
Basic Rules for Modification
It is impossible to construct an exhaustive list of circumstances that the court considers in order to modify a child custody order. However, below are a list of basic rules that courts follow in order to make their determination:
If you need to speak with a child custody / family law attorney, contact Adkins Law. We are located in Huntersville NC and primarily serve Mecklenburg County and the Lake Norman area.
A common issue co-parents have in rearing their children involves modifying or changing their child custody arrangement once a permanent order has been entered. Just because an order is deemed permanent, does not necessarily mean that it cannot be changed. Specifically, permanent child custody orders may be modified in two situations:
When a parent violates a court order, they may be found in contempt. A finding of contempt alone may not justify the modification of a child custody order. If the violation, however, is deemed to be serious enough to warrant a changed circumstance as for the custody arrangement, the custody or visitation order may be modified. The intent is not to punish the parent who violates the order, but instead to modify the order in the best interests of the child.
When one or both parents allege that there has been a change in circumstances that affects the child, a modification to the existing child custody order may be made. A substantial change of circumstances may involve something that changes the child’s wellbeing, relationship with their parents, the child’s personal wishes and desires, the conduct of the parents, and the child’s environment and living situation. The change must be substantial, and it must affect the child. This affect does not have to be adverse, but can be positive as well.
If you need to speak to a child custody attorney in regards to modifying an existing child custody order, contact Adkins Law. Adkins Law focuses primarily on family law matters, and has locations in Huntersville and south Charlotte.