When Can a Custody Order Be Changed in North Carolina?

For children caught in the middle of a divorce, few things feel more uncertain (or more frightening) than not knowing what their daily life will look like going forward. Child custody orders are meant to change that by giving families the structure, stability, and clear path forward that they desperately need.

It sounds good on paper, assuming all parties can agree on a custody arrangement. But in real life, circumstances change. A parent may get a new job across the state, or a child’s needs may change as they grow.

The family dynamic that existed when a judge signed the original order may look almost unrecognizable a few years later.

But even then, a court cannot change that custody order just because one parent believes a different arrangement would be better. Wanting more time with your kids (as understandable as that is) isn’t enough on its own.

The North Carolina case Hammett v. Hammett shows how important it is to use the correct legal standard when one parent asks the court to modify an existing custody order.

Background of the Hammett v. Hammett Case

Michael and Carla Hammett married in 2005 and had a child in September 2012 before separating in October 2019.

Michael filed for custody and equitable distribution following the separation. In November 2019, the trial court entered an initial custody order, which was followed until Michael sought a modification in July 2022. The trial court granted that modification in July of 2023.

Carla appealed, arguing that the trial court used the wrong legal standard. The court did not first address whether there had been a substantial change in circumstances affecting their child’s welfare, but instead completely skipped straight to the best interests of the child analysis, as if this were a brand new custody case and not a modification of an existing order.

What the Court of Appeals Said

The North Carolina Court of Appeals agreed with Carla.

The key issue here was the legal test applied by the trial court. A judge cannot change an existing custody order simply because a new arrangement might seem better. The parent asking for the change in NC must first prove that there has been a “substantial change in circumstances” affecting the welfare of the child.

There is a good reason for this no-tweaking rule. Custody orders are intended to give children stability, but if courts were to reopen custody cases every time one parent wanted a different schedule, families could be drawn back into conflict again and again.

It’s easy to see why that is one of the worst ways to ensure stability for a child.

In Hammett, the trial court found that there had been a “material change of circumstances” affecting the child’s “best interest.” The Court of Appeals held that language suggested the trial court had blended the two parts of the test rather than consider them separately, as Carla argued.

The appellate court also mentioned another NC custody case, Hatcher v. Matthews, that had a similar problem. In that case, the custody order was remanded because the trial court also applied the wrong legal standard.

What’s Next?

The Court of Appeals did not address what the custody arrangement should actually be. Instead, as in Hatcher v. Matthews, Appeals vacated the trial court’s order and sent the case back.

That means the trial court must issue a new order applying the correct legal standard.

If the court finds a substantial change affecting the child’s welfare, then it can get to the best interests analysis.

Why This Is So Important for Parents to Know

Modifying custody is different from creating an initial custody order. A parent asking for a change must show more than a preference for a new schedule. First, the parent must demonstrate that there has been a material change and that the child’s welfare is affected by such change.

If you are considering a custody modification, or if your co-parent has asked to change an existing custody order, Woodruff Family Law Group can help you understand your rights and options.

Reach out to us today to talk about your situation and what’s next for your family.