Modification of Child Custody

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:

• The change in circumstances must be substantial.

 

• The district court judge must make the distinction between changes that have a salutary effect on the child verses those that have adverse effects on the child.

 

• Circumstantial evidence that suggest that a substantial change may occur sometime in the future is inadmissible and will not support a change in custody.

 

• The evidence that is present must demonstrate a connection between the substantial change in circumstances and the welfare of the child. 

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.