One of the only predictable things about life is that we can count on it to change. This is true for everyone, and it is especially true for families with children. As children grow, their needs change. A schedule and a visitation plan that may have worked well when children were toddlers may not work so well when they are preteens. This is not to mention the fact that the lives of parents change too. One parent might begin a new relationship, or take a job that requires a relocation. Whatever the situation may be, it is sometimes necessary for families to seek a modification of the court’s original custody order. As with every other divorce issue, it is of course always best if the parties can discuss the issue themselves and decide upon a modification that may be best. If the parties are able to do so, they can file a motion to modify the custody order with the court, and along with that motion, they submit their proposed modification to the judge for approval. This is often referred to as a consent order, and is typically the best approach to reduce time, expense, and stress for everyone involved. If, on the other hand, the parents are not able to agree on what sort of modification might be necessary, the parent desiring the modification will need to file a motion to modify custody with the court and prove either a violation of the original order as we discussed in the preceding section on enforcement, or prove what is known under the law as a “substantial and material change in circumstances.” If the court has determined that a substantial material change in circumstances has occurred, it will then consider whether modification of the existing custody order is in the best interest of the children involved. Understandably, courts have some amount of discretion in determining what is considered a “substantial and material” change in circumstances. Often, if one parent is relocating to another state and the move might impact the child’s stability and emotional well-being, the court might consider that circumstance substantial enough to warrant a modification. Likewise, a significant lifestyle change for one of the parents might also necessitate a change. If for example, one parent suddenly begins struggling with addiction or mental health issues that are having a detrimental effect upon the child, this may qualify for modification. In other instances, if one parent has entered into a new relationship with a person who has proven to be a negative influence on the child or otherwise displays behaviors that are detrimental to the child’s well-being, this may qualify for modification of custody as well. If one parent starts suddenly leaving the child alone for long periods of time or failing to nurture and care for the child as he or she should, this may also warrant modification. Generally, courts have a good deal of discretion and consulting with an attorney as to your particular circumstances is always a wise decision when determining whether or not a request for modification might be successful. If you need to speak with an experienced custody attorney in Huntersville about modifying your existing custody order, contact Adkins Law to arrange a consultation.
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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.
Custody Order 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. During Travel 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. Legal Standard 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. If you need to speak with a family law attorney about modifying your child custody order, contact Adkins Law. Adkins Law has locations in Huntersville and Ballantyne. 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. |
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