Is a Permanent Custody Order Always Permanent in North Carolina? (Part 1 of 2)

The term “permanent” in a custody order holds extra weight at first glance. After all, if the title says “Permanent Custody Order”, it’s easy to assume that the arrangement can only be changed if something occurs that is substantial enough to garner the court’s attention.

There’s another assumption here as well – that the parent holding court-ordered full custody will always have the upper hand in any future custody discussions. Yet when looking at the facts and substance of any particular case, assumptions can be wrong. A 2024 North Carolina Court of Appeals decision, Williamson v. Smith (909 S.E.2d 926), is an example worth studying.

In this case, a father who held full legal and physical custody ended up sharing custody on a week-on, week-off basis – and the appellate court allowed that result to stand. The case shows how an order’s substance matters more than a title – and the important differences between temporary and permanent custody orders.

Note: Williamson v. Smith is an unpublished opinion and does not serve as a binding legal precedent in North Carolina. However, the case does offer NC families insight into how courts may handle similar situations.

A Background of the Case

Before studying the process and outcome, it is helpful to know the circumstances of the case itself. In Williamson v. Smith, the parents involved were never married and had one child who was born in late 2021.

After separating, the mother moved out of the home with the child and did not reveal to the father where they had relocated. The father then filed for custody of the child in July 2022.

In November 2022, there was a hearing. The mother did not attend. Later that month, the trial court entered a “Permanent Custody Order” that gave the father full legal and physical custody. Part of that decision was driven by concerns regarding who the mother and child were currently living with.

The court order gave the mother a six-month window to ask the court to revisit custody –  importantly, without proving that her circumstances had substantially changed.

This time, the mother acted quickly and filed her answer within the window. After a full hearing in March 2023 – which both parents attended and testified – the trial court determined that both parents were fit to parent.

In May 2023, the court awarded joint legal and physical custody to both parents, with parents alternating weeks. The father quickly appealed the decision. However, the Court of Appeals ultimately sided with the mother.

Can a Custody Order Be Changed Without a “Substantial Change in Circumstances”?

North Carolina law treats temporary and permanent custody orders differently. That difference was at the heart of this case, and impacted the outcome (and both parents’ options):

• In order to modify a permanent order, the parent requesting the change must prove a substantial change in circumstances affecting the child involved.
• To modify a temporary order, the court simply decides what action would be in the best interest of the child, which is a much lower bar.

The father in Williamson v. Smith argued that the earlier custody order was permanent (it said so right in the title of the order), meaning that the May 2023 change required proof of a substantial change in the mother’s circumstances. The mother argued that the order was temporary in nature, so the best interests controlled the outcome.

Our next blog will cover what the Court of Appeals decided and why.