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Permanent vs. Temporary Custody Orders on Appellate Review

By Sade Knox, Intern, Woodruff Family Law Group

King v. Giannini-King, 784 S.E.2d 237 (N.C. Ct. App. 2016).

Facts: In October 2001, Plaintiff (father) and Defendant (mother) were married and then separated, about seven years later, in early June 2008. Two minor children were born to the parties’ marriage. After the separation, Defendant relocated with the minor children. Subsequently, to Defendant’s relocation, Plaintiff brought an action for divorce from bed and board, child custody, and equitable distribution. Defendant filed a motion to dismiss, a motion to strike, in addition to a counterclaim for custody, child support, alimony, etc.

The trial court initially granted both parties temporary joint legal and physical custody of the minor children. The trial court, nearly a year later, entered a custody order, granting Defendant permanent legal and physical custody of the minor children, and permitted Defendant’s relocation of herself and the minor children to Wilmington, N.C.

Plaintiff was granted visitation rights and relocated to Southport, N.C., where the parties began to modify their custody schedule. Plaintiff later remarried and returned to Person County. Soon after, Plaintiff filed motions alleging a substantial change in circumstance, which resulted in the trial court transferring primary physical custody of the minor children to Plaintiff, temporarily, and allowed Plaintiff to relocate the minor children to Person County.

Defendant filed a motion asking for a new trial, or set aside the temporary order, shortly thereafter, which the trial court denied.  Finally, in mid-December 2014, the court entered a permanent order that granted both parties joint legal and physical custody of the minor children. Defendant appealed arguing the trial court had erred in their custody orders.

Issue: Whether Plaintiff’s argument concerning the temporary custody order was appropriate for appellate review. Was there enough evidence to support a substantial change in circumstance?

Answer to Issue: No. Yes.

Summary of Rationale: Trial court custody decisions are determined by considering not only the stability of the parent, but the benefits the child(s) can receive in the parent’s care, the nearness to other family members, the type of school the child(s) would attend, the environment the child(s) would be raised in, and the overall best interest of the child(s).

Defendant argued that the trial court erred in entering the permanent custody order, but failed to suggest that the findings of fact were unsupported, causing the court to hold their findings as unchallenged and therefore, binding. The court further noted their reasoning for allowing the relocation of the children to Person County with Plaintiff. The trial court mentioned the Plaintiff’s ability to provide a stable, two-parent home close to family (immediate area of nine relatives) and friends, a home close to a school with smaller classrooms with relatives working and attending the school, and a general more positive environment for the minor children.

In regards to the temporary custody order, temporary orders are not to be reviewed on an appellate level simply because they are temporary, so the court declined to address this argument.

Defendant further argued that Plaintiff failed to meet his burden of proving a substantial change in circumstances, which the court did not agree with. Due to the several years passed, Plaintiff’s new marriage, Plaintiff’s return to Person County, and Defendant’s failure to benefit the children by previously relocating them, the court found that Plaintiff’s burden to show a substantial change in circumstance was indeed, beyond proven. Accordingly, the trial court’s permanent joint custody order was affirmed.

Comments:

North Carolina statutes do permit the trial court to enter a temporary custody order at any time. N.C.G.S. § 50-13.5(d) (2013.)

In accordance with Smithwick, a temporary order is not proper in an appellate review and therefore shall be dismissed.