Articles Tagged with custody change

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Carolyn Woodruff, J.D., C.P.A, C.V.A.

Dear Carolyn,

I reluctantly entered into a consent child custody order with the mother of my child in 2013. We were never married and never actually lived together. The child is now five having been born in 2011. I get visitation under the 2013 order, but the court never heard any evidence in 2013. We simply agreed. Now, I am very concerned this mother is unfit. She continues to smoke around the child who has asthma. She also has been charged with drug possession in both 2012 and recently. She will not let me have a relationship with my kid. She threatens to move out of state. There are things I need to tell the court about from the child’s birth until 2013 (date of current custody order), but my attorney says I cannot use the 2011 to 2013 evidence in my motion to modify custody. I want primary custody with the mother having supervised visitation. Is there any way I can present the proof of what this mother was like from 2011 to 2013? I think the mother of my child is unfit. What can I do?

– Worried about unfit mother

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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. Continue reading →

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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.

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If you have an existing child custody order that you want to change, the process can be quite complex. A North Carolina parent cannot just unilaterally change any type of child custody agreement. At the Woodruff Family Law Group, our seasoned family law lawyers can help you determine if your circumstances will permit a child custody modification. With years of experience, we are well versed in this are of law and can put our knowledge to use in your case.

In Pulliam v. Smith, the North Carolina Supreme Court held that the evidence supported the trial court’s decision to modify an out-of-state child custody judgment and an award of exclusive custody to the former wife as a result of the former husband’s homosexual relationship and activities.

The court highlighted that a change in a custodial parent’s residence is not itself a substantial change in circumstances justifying a modification of the custody order. However, if the location is detrimental to the child’s well being, the change in residence of the custodial parent is a substantial change in circumstances and justifies a modification of custody.

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In any divorce, custody cases can be extremely complicated. While we want to believe that most parents can amicably work out an agreement that is best for the children, the reality is that there are often long and drawn-out custody battles that can exhaust the entire family. Under North Carolina law, child custody orders can be modified in two basic circumstances: when one of the parents has violated a court order, or when one or both parents allege a substantial change in circumstances.

In the case of LaValley v. LaValley, the court held that if a child custody order is final, a party moving for a modification must first establish that a substantial change in circumstances has taken place. However, if a custody order is temporary, the court can simply use the ‘best interest of the child’ standard. Furthermore, the court highlighted that an order can be “converted” to a permanent order when neither parent seeks a date to resolve the issue within a reasonable time.

In King v. King, the plaintiff (the father) and the defendant (the mother) were married and lived together until their separation in 2008. They had two minor children. The defendant moved to Wilmington, North Carolina with both kids. Some time afterward, the plaintiff brought an action for divorce and sought child custody. The defendant filed an answer and counterclaim requesting custody.

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In court-ordered child custody mediation in North Carolina, agreement is the polar star.  Both parents are applauded for entering a parenting agreement.   The question is whether agreement is always in the best interests of the child.  Certainly, we all want parents to agree, but there are certain times when agreements should be entered into with caution.  Certainly, the majority of parenting cases end with the parents agreeing to terms.  Quite frankly, many of these parents would have agreed on custodial arrangements for the children, with or without mediation. Such agreements by parents are simply parents putting children first and naturally looking after their offspring.  The majority of parents can and do put the children first.

There are three broad categories of parents that should use caution concerning consent custody orders or parenting agreements.  The three major issues are as follows: (1) mental illness; (2) addictions; and (3) domestic violence.

An important question to ask yourself in deciding whether to enter into a parenting agreement (consent order for child custody) with no findings of fact is:  what evidence of facts am I losing by not presenting the bad parenting facts I have in my “arsenal” right now?

A recent case bears special consideration: Robinson vs. Cain, COA15-181 filed October 20, 2015.  In Robinson, the father sought to modify the child custody order of his child born in 2006, so the child would have been nine at the time the Court of Appeals heard the case.

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