Published on:

To Agree or Not to Agree: What are the risks of agreeing to a child custody order without consideration of all the facts?

In court-ordered child custody mediation in North Carolina, agreement is the polar star.  Both parents are applauded for entering a parenting agreement.    The question is whether agreement is always in the best interests of the child.  Certainly, we all want parents to agree, but there are certain times when agreements should be entered into with caution.   Certainly, the majority of parenting cases end with the parents agreeing to terms.  Quite frankly, many of these parents would have agreed on custodial arrangements for the children, with or without mediation. Such agreements by parents are simply parents putting children first and naturally looking after their offspring.  The majority of parents can and do put the children first.

There are three broad categories of parents that should use caution concerning consent custody orders or parenting agreements.  The three major issues are as follows: (1) mental illness; (2) addictions; and (3) domestic violence.

An important question to ask yourself in deciding whether to enter into a parenting agreement (consent order for child custody) with no findings of fact is:  what evidence of facts am I losing by not presenting the bad parenting facts I have in my “arsenal” right now?

A recent case bears special consideration: Robinson vs. Cain, COA15-181 filed October 20, 2015.  In Robinson, the father sought to modify the child custody order of his child born in 2006, so the child would have been nine at the time the Court of Appeals heard the case.

In June 2007, the court entered the first custody order. This order had a finding of fact that the Mother was a “fit and proper” person for custody of the child and the Father received “reasonable visitation.”  The findings lacked specifics.

On January 28, 2013, the Father filed a motion to modify custody. Father alleged as his reasons for changed circumstances the following:  A) Mother would not communicate with Father regarding the educational needs of the child. B) Mother disconnected a smoke detector that DHHS had installed. C) Mother was denying meaningful visitation. D) The Rutherford County police recently accused the mother of drugs and paraphernalia in her automobile.  E)  Mother threatened to remove the child from North Carolina.

Then, on June 18, 2013, Father filed another motion to modify the June 2007 order.

On August 27, 2013, Father and Mother entered into a second handwritten Memorandum of Judgment/Order that 1) gave both parents Joint legal custody; 2) gave Father a specified visitation schedule, and 3) gave Mother primary physical custody.  One might ask, why would Father leave the child primarily with Mother given the drug charges?  But, he did.

May 30, 2014, the Father filed a Motion to Modify August 27, 2013, order.

On August 29, 2014, the trial court denied the Father’s Motion to Modify, citing that there were no changed circumstances between the August 27, 2013 order and the May 30, 2014 Motion to Modify.  In other words, Father should never have agreed to the August 27, 2013 Memorandum of Judgment/Order, given the issues.

So, the issue is (1) whether the trial court should evaluation whether there is a change of circumstances between August 27, 2013 Memorandum of Judgment/Order and the date of trial on August 29, 2014 OR (2) whether the trial court should evaluate change of circumstances between a date earlier than August 27, 2013 and the date of trial of August 29, 2014?  The North Carolina Court of Appeals held that the trial court should have evaluated a change of circumstances based upon facts before August 27, 2013 since the August 27, 2013 Memorandum of Judgment/Order did not include findings of fact.

The rationale for the North Carolina Court of Appeals was that facts not considered by the trial court were not res judicata to the trial court, and thus, the facts not previously considered could be considered.  The trial court should have considered facts all the way back to the child’s birth if the facts had not been previously disclosed to the court at the hearing on August 29, 2014.  When you think about the position of the Court of Appeals, this holding clearly looks out for the child the best.  While re-litigating facts over and over are not in the child’s best interest, certainly giving the court the power to review and decide a set of facts (like drug addiction) once, is in the child’s best interest.

The custody orders (parenting agreements) written by the Child Custody Mediation Office do not have findings of fact.