Life after divorce can be difficult and made even more challenging when custody disputes are involved. North Carolina law was designed for the reality that people’s circumstances can change from time to time, and they may need to modify existing custody orders accordingly. When parents cannot agree on which changes are appropriate, the court will decide whether a modification is necessary based on substantial changes in circumstances.
Substantial changes in circumstances can include serious changes, such as the loss of a job, remarriage, or relocation of one parent. Of course, there could be other factors that the court deems ‘substantial’ as well. Any time that a parent claims that a substantial change in circumstances has occurred, the court will likely require proof and documentation of that change.
In the case of Hibshman v. Hibshman, a judge initially entered an order changing primary custody of a couple’s children from the mother to the father, but the judge did not first decide that there had been a substantial change in circumstances.
The facts of the case are as follows. The parents had a consensual custody arrangement, which awarded primary custody to the mother. The agreement stated that the mother would have primary custody as long as she remained in a particular school district. The consent order also stated that if the mother relocated away from the school district, the court would examine additional evidence and would be free to modify the custody agreement without having to find a substantial change in circumstances. All parties agreed that this was a clause to which they consented in the consent order.
Ultimately, the mother moved and left the school district in question. The court held an evidentiary hearing to decide what would be in the best interests of the children. The parties again confirmed their stipulation that the court did not need to examine evidence to decide whether a substantial change in circumstances had taken place. The court then changed primary custody from the mother to the father.
The mother appealed and argued that it was improper of the court to waive the necessity of the court finding whether a substantial change in circumstances had taken place.
On review, the court ruled that despite the parents’ stipulation in the consent agreement, North Carolina does not allow parties to waive the necessity of the court making the substantial change in circumstances determination. In fact, there are no exceptions in North Carolina law to the requirement that a change in circumstances must be demonstrated prior to any child custody modification going into effect. The court highlighted that the law is designed to provide stability that would end the ongoing “vicious litigation” that so often accompanies such agreements. Furthermore, the mother could not waive the substantial change requirement set forth by North Carolina law, since it is a statutorily mandated limit on the court’s power, as opposed to a personal right that can simply be waived by a person.
At the Woodruff Family Law Group, our seasoned North Carolina child custody attorneys can work diligently to advocate for your rights. We know that this can be an extremely stressful time for you, which is why we will handle your case with sensitivity and compassion. To learn more, feel free to contact us online or call us at 336-272-9122.
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