Modification of Custody

Are you interested in changing a custody order in North Carolina? You may have a child custody order in place and maybe it has worked well for a while, maybe not. But you know that it is no longer working to the point where you believe that it needs to be changed. Or maybe you believe that the order is working fine, but the other parent has filed a motion to modify the order.
What does it take to change a custody order in North Carolina?

The law of North Carolina is that a custody order can be modified by the Court upon a showing of a substantial change of circumstances affecting the minor children since the entry of the current order. This means that the change must 1) occur after the entry of the current order; 2) be substantial; and 3) affect the minor children. All of these must be present before a judge can decide whether changing a custody order is in the best interest of the child or children.

Some examples might be:

  • A child is failing in school or getting in trouble while in the primary custody of one parent and there is evidence that the parenting style of that parent may be a factor.
  • A parent does not follow the current order that is in place, thereby disrupting the child’s schedule or interfering with the relationship with the other parent.
  • A parent moves or plans on moving such that the current custody schedule is no longer possible.
  • Lifestyle changes of one parent that may positively or adversely affect the child. This could be a change in employment, substance abuse, domestic violence.
  • There is a disagreement over a major health or education issue affecting the child.
  • The child has a desire to spend more time with a parent or less time with a parent for legitimate reasons.

Even after a change of circumstances is show, the Judge must still decide whether a change to the order is in the child’s best interests.  Sometimes there may be a change, but the Judge decides that a modification of the order is not in the child’s best interest.

The burden of proof in a child custody modification case is on the party who is requesting the change. That means the person who is asking for the modification must establish the change of circumstances as well as that modification is in the best interests of the child.

It is also important to note that a judge is not required to make the change that you are asking for. Once the case is brought before the Court, a judge can order what the JUDGE believes is in the best interest of the child. This means that a judge could give the other parent more OR less custody even in a situation where the other parent didn’t file a motion.  Sometimes you may be better off leaving the order the way it is or fighting to keep it the way it is depending on the facts.

Because of the standards that you must be proven and the risks that going to court always involves, it is important to have a lawyer who is very experienced in custody cases regardless of what side you are on. A lawyer with many years of experience can give you an honest assessment of your case and chances in court, although no lawyer can guarantee any result.

It is also important to know that changing a custody order may actually take more time and cost more money than the original custody case. Many times modification motions are highly contested and involve many more witnesses and evidence than the original case. This is not always true, but you should be prepared for the possibility of a long, costly fight. A “modification” may sound like a minor matter, but it very often is not.

With that said, all custody cases in North Carolina are subjected to mandatory mediation before a judge will hear the case except for emergency situations. This means that you may be able to resolve your case by agreement early on in the process and save a lot of time and money. Even if the mediation fails, the reality is that most cases will still settle before a judge has to rule on them. This may take quite a bit of time and money as the parties go back and forth through lawyers, but it still usually preferable to letting a judge decide the case where neither party knows the outcome until the judge makes a ruling.

Agreement by mediation or otherwise is not always possible and the case may end up being decided by a judge. This is where you want to be as prepared as possible with a lawyer who fully understands the facts of your case, its strengths and weaknesses, the demeanor and reputation of the judge, and most importantly- the law.

The Spagnola Law Firm has over 24 years of experience in family law matters and enjoys a well-earned reputation for high legal ability among lawyers and strong representation among clients. Samuel Spagnola has been certified as a Family Law Specialist by the North Carolina Board of Legal Specialization since 2008. If you are considering a modification to your custody order or find yourself in a modification motion filed by the other parent, set up an appointment with us today.

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