By Jim Warren
In a recent article, we discussed how people commonly think about sole versus joint custody with regard to caring for their children after divorce, as well as how the North Carolina family courts think with regard to physical and legal custody.
Determination of Custody
Now, let’s address an issue that faces many of our clients, often months and many times years after the family court judge issues a custody order—petitions for custody modification. Custody can be established either by negotiations by separation agreement or by order of the court after a custody hearing.
There is a difference between a contractual agreement and an order whether by consent or not. If one seeks to modify a court order, you must show a material and substantial change in circumstances since the entry of the order.
When making the initial (and often final) custody order, as in all other matters involving children the court prioritizes the best interests of the children. Some factors judges consider may be the age of the children, each parent’s respective stability (financially, mentally, emotionally), the work schedules of each parent, and, ideally, how each parent would involve the other parent in the child’s life.
Legal and Physical Custody
In many situations, whether negotiated by the parents or decided by a judge, the dissolution of the marriage leaves the couple with joint legal custody (co-parenting in major decisions related to the child’s health, education, and overall welfare) and joint physical custody (co-parenting where the child physically lives with each parent, often living with one during the week and the other on the weekends).
Of course, there are often other arrangements, such as those dictated by distance. When one parent moves away, that parent may only have physical custody on occasional weekends and/or during school breaks such as the holiday season, spring break, or summertime.
Modifications of Custody
Clients often have preconceived notions that custody arrangements are permanent in nature. When custody has been decided by the negotiated separation agreement, the parties don’t necessarily have to go to court. They can simply renegotiate their contract. If the situation is more combative, they can turn to mediation or pursue a custody action with the family court.
If the order was by consent and does not contain sufficient findings for a judge to determine the circumstances at the time of the order, then evidence must be presented to establish what circumstances were at the time of the order, in order to determine if a change has occurred. The change in circumstances must be material and must have impacted the children. It does not have to be a negative change; it can be a positive one. Only if the above has shown, does the court get to the issue of then determining of whether a modification of the existing order is in the best interests of the children.
Factors for Consideration: Modification of Custody
Think about that situation of one parent moving away. This can have big ramifications for being able to co-parent effectively, and if the parent who stays put is an involved parent, that parent can often successfully stop the move with the child and it can lead to a modification of custody.
In addition to proximity, the court will reconsider the same issues originally on the table at the initial custody order, such as changes to a parent’s work schedule. The court may also consider a child’s preference, particularly with older children.
The reasons for considering modification aren’t always benign. If the child’s safety or stability is proven to be in jeopardy, or if a parent isn’t actively fulfilling their part of the initial custody arrangement. Regardless, when a parent files a motion with the court for modify the original (or previous) order, there must be a substantial change that can affect the child’s well-being in the opinion in the judge.
At Warren Family Law, we have worked on hundreds of child custody matters in our more than 30 years of family law practice. Often, we are assisting parents in negotiating separation agreements that will serve the best interests of their children. Other times, we are representing clients in custody actions, helping some to assert their rights when they think they can better meet the needs of their children, and sometimes we help folks defend those same rights when they feel besieged by a modification motion.
Regardless of your situation, we are here to help. Contact us today to start a conversation and make sure you get the vigorous representation you deserve.