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.