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Custody Modification – Remember the Child

Handerson v. Wittig, No.COA20-924 (July 2021).

Modifications to child custody orders require a substantial change in circumstances affecting the welfare of the child. The change in circumstance is the gatekeeper. That alone will not amount to modification; the court still needs to determine if the change in circumstance affects the welfare of the child and if modification is in the child’s best interest. We see below that the Court has written about what kind of evidence is insufficient to support a change in circumstance when it fails to link with the welfare of the child.

  • Facts: Mother and Father were parents of a child. Father instituted a custody action and the trial court entered a consent order approving a parenting agreement. Soon after the entry of the consent order, the parties began having issues abiding by the terms. Father went to court alleging that Mother did not discuss major life decisions concerning the child. Mother and Father continuously had difficulty communicating about the child, and had multiple disagreements about vacation times, school, healthcare, and exchanges. A motion to modify custody was eventually filed by Mother, and the modification was entered, granting Father final decision-making authority. Mother appealed.


  • Issue: Was the trial court in error in granting the custody modification?


  • Holding:


  • Rationale: The trial court’s order modifying custody was primarily centered on the difficulties of the parents—their inability to communicate, disagreements in vacation times, custody exchanges, and disagreements about major life decisions. It also contained some findings about changes in the parents’ living arrangements. However, what the order failed to explain was how each and every evidentiary finding affected the welfare of the child. While the trial court may have properly found that these events since the entry of the consent order may be classified as substantial changes, the trial court did not explain how their modification served best interests of the child, because it was unknown to the Court what affect the “changes” had on the child. The findings failed to address how the lack of communication and difficulties had affected aspects of the child’s welfare. It failed to address how disagreements and difficulties in schooling and healthcare affected the child; there was no evidence about the child’s health or schoolwork. Even when the trial court made findings about the parents’ home life, it failed to acknowledge how that home life was affecting the child. These were insufficient findings to support modification.


  • Lessons and Observations:
    1. Child custody is about the child. It seems as if the parents’ issues flooded the courtroom and, in a sense, pushed away the conversation of how it affects the child. Sometimes events and changes are “self-evident” with respect to their affect on the child (for example, if one parent became homeless). The types of disagreements and difficulties here, between the parents, do not give enough insight as to the welfare of the child. Put another way, the trial court simply forgot about the child. Perhaps the parents just wanted a way to vent their frustrations and anger towards each other, and the court momentarily was engrossed by their bickering. In any event, your family law attorney can help keep the focus of your case on the children, where it belongs.