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Temporary or Permanent Orders in North Carolina Child Custody Cases – King v. King

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In any divorce, custody cases can be extremely complicated. While we want to believe that most parents can amicably work out an agreement that is best for the children, the reality is that there are often long and drawn-out custody battles that can exhaust the entire family. Under North Carolina law, child custody orders can be modified in two basic circumstances:  when one of the parents has violated a court order, or when one or both parents allege a substantial change in circumstances.

In the case of LaValley v. LaValley, the court held that if a child custody order is final, a party moving for a modification must first establish that a substantial change in circumstances has taken place. However, if a custody order is temporary, the court can simply use the ‘best interest of the child’ standard. Furthermore, the court highlighted that an order can be “converted” to a permanent order when neither parent seeks a date to resolve the issue within a reasonable time.

In King v. King, the plaintiff (the father) and the defendant (the mother) were married and lived together until their separation in 2008. They had two minor children. The defendant moved to Wilmington, North Carolina with both kids. Some time afterward, the plaintiff brought an action for divorce and sought child custody. The defendant filed an answer and counterclaim requesting custody.

The trial court first entered a temporary custody order awarding joint legal and physical custody of the children to both parents. Later, the trial court entered a permanent custody order, granting primary physical custody to the mother, and it gave permission to the mother to relocate with the kids to Wilmington. The father was given visitation rights that allowed him to have physical custody of the children two weekends each month, together with visitation rights whenever he was in the area as long as he told the mother beforehand.

Some time thereafter, the father moved to Southport, North Carolina, and the parents modified their custody arrangement. However, this new arrangement was never codified in an official order. The father then remarried and returned to Person County. He filed two motions to modify custody, stating that there was a substantial change in circumstances. The court then entered a temporary custody order in favor of the father, permitting him to relocate to Person County with the kids.

The mother then filed a motion for a new trial, or alternatively a request to set aside the temporary order. The trial court denied the mother’s request seeking custody.

The mother then appealed, which was dismissed by the court.

The trial court entered a permanent order, granting joint legal and physical custody of the children to the parties. The mother appealed once again.

On appeal, the mother had to show that the evidence did not support the lower court’s decision. Since the mother did not actually support this contention, the argument was abandoned.

Even assuming that the mother had properly challenged the decision, the father highlighted that the trial court had examined more than 50 findings of fact pertaining to the mother’s move to Wilmington and the positive impact it would have on both kids. However, the mother failed to move. At this point, the court decided that, contrary to the defendant’s claims, the trial court made many findings that supported its determination that there had been a substantial change in circumstances, which required a reexamination of what was in the best interests of the children. After reviewing the facts, the court decided that the children moving to Person County with their father was appropriate, since they would be close to their school, family, and friends as well as enjoying a stable two-parent home.

As for the mother’s argument that the trial court erred in entering the temporary order, this argument was dismissed because the order was not before the court. The court noted that North Carolina permits the trial court to enter a temporary custody order at any time, and a significant delay in trial for a permanent custody order does not render the temporary custody order inappropriate.

At the Woodruff Family Law Group, our seasoned North Carolina child custody attorneys can help you resolve your child custody issues. We understand that this is a complex and sensitive topic, which is why you can expect the utmost compassion from our entire team. For more information, do not hesitate to contact us online or call us at 336-272-9122.

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