Modification of Child Custody in North Carolina

This blog seeks to provide some insight into modification of child custody in North Carolina. Child Custody in some circumstances can turn into a long-term issue that has to be addressed because of the variety of ways it is addressed by the Courts.  There is emergency custody, temporary custody, and modification of child custodypermanent custody.   Permanent custody, however, is a fallacy because there are some instances in which the custody arrangement ordered by the court can be changed.  The method for obtaining this change is through an action for modification of child custody.

In North Carolina, even after a permanent custody order, one parent can move to have that order modified any time, as long as they can allege and prove that “there was a substantial change in circumstances that affect the welfare of the minor child”.  A hearing can be requested and if often granted, the judge will hear evidence of the allegations.

Process for filing a modification of custody action

In order to get child custody changed, the parent requesting the change must file a motion with the court, using the same case number that was associated with the original child custody action.  In that motion, the parent must allege a substantial change in circumstances that affect the welfare of the minor child. Another part of the process is to request a hearing for this matter to be heard, and not serve the other parent of the action.

Substantial Change in Circumstances

The party attempting to modify child custody has the burden to show why it is necessary to modify child custody.  Parents cannot simply change the terms of a court order (which is what a custody order is) simply because they feel like it or because they don’t find it to be fair.

The judge is the person who decides whether there are enough facts alleged at a hearing to determine that there has been substantial change in circumstances.   The problem that some of our clients have with this is that they think there has been a substantial change in circumstances where there has not been for purposes of child custody in North Carolina.  Examples:

Example of what would likely be a substantial changed in circumstances:

  • The parent with primary physical custody has recently become paralyzed and can no longer physically care for the couple’s three-year-old child. This parent also does not have a support system or anyone else living with her and must move in to an assisted living facility.

Example of what would not likely be considered a substantial changed in circumstances:

  • Parent got a new boyfriend/girlfriend, and you don’t like that person.
  • Parent moved five miles away, and you don’t like that neighborhood.
  • Parent sent child home with dirty socks.
  • Parent was late once or twice for an exchange for visitation.

Modification of child custody can be complicated and may require professional assistance.  At Gilles Law, we handle a wide variety of family matters including child custody and child custody modification.

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