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Custody Modification – Positive Change in Circumstances

Fecteau v. Spierer, COA20-532 (2020).

Child custody orders are modifiable under North Carolina law. In order to modify, the party seeking a modification must show a substantial change in circumstances, from those found in previous order, that warrants modification. It may seem obvious that big changes in the custodial parent’s life meet that standard. But in the case below, we discuss how improvements in the noncustodial parent’s life can warrant a modification in his favor, which can grant him more time with his kids and more decision-making abilities.

  1. Facts: In 2017, a consent order granted custody of RF to Intervenor Maternal Grandparents, and secondary custody to Plaintiff. Plaintiff then filed a motion to modify custody in 2018 alleging a substantial change in circumstances that warranted modification for primary physical custody and joint legal with Defendant. At this modification hearing, Plaintiff was granted primary physical custody, while Intervenors were granted secondary custody and visitation. Defendant was granted supervised visitation. Intervenors appealed.


  1. Issue: Was the trial court mistaken when they modified the custody order?


  1. Holding:


  1. Rationale: Custody Orders can be subject to modification if the party requesting modification shows a “substantial change in circumstances” affecting the welfare of the child that supports modification. In this case, since the original consent order, Plaintiff father has remarried to a new wife, who has formed a bond with RF. Plaintiff also is the stepfather a child close in age with RF, and the two children have bonded. The two children will attend the same school together. Plaintiff has changed his living situation from an apartment with a roommate, to a new three-bedroom home. He went from working two low paying jobs to one stable job, allowing for more time to be an active parent, and he has health insurance. Plaintiff testified that he wanted to enroll RF in extracurriculars with his stepson.


The record basically showed a complete turnaround in Plaintiff’s life, and this “series of developments” amounted to a change of circumstances, which obviously had a positive impact on the welfare of RF. Since the trial court properly considered this evidence, there was no error.


  1. Lessons and Observations:


  1. A “series of developments” that positively affect the welfare of a child can be very strong evidence for a court to consider modifying custody to increase custodial time. This Plaintiff father took action and got primary custody of his child in about one year.
  2. In this case, the Intervenors, the maternal grandparents, argued that the court ought to have considered their circumstances against Plaintiff’s. However, the Court of Appeals stated that comparisons between parties seeking custody are not the standard in determining custody, whereas impact on the welfare of the child is.
  3. If you are a parent seeking modification of a custody order to increase your rights and time with your children, be proactive and work on yourself; address the reasons why the original order was entered the way it was. You do not always have to wait for the other parent to have a change in circumstances.
  4. Note: this case also addressed the natural parent presumption, but since Plaintiff did not argue for the presumption, nor did the trial court consider it, the argument failed.