North Carolina law allows for the modification of a child custody order under certain circumstances. This article explores the law and the circumstances allowing the trial court to modify a custody order.
This article assumes that a North Carolina custody order is in place. A separation agreement that has not been incorporated is not a court order. A parenting agreement or consent order that has been signed by the parents and the judge is a court order. An order of a different state that has been registered to allow modification is also the kind of order that can be modified.
Recall that if a judge hears a child custody case where there is no order in place or there is only a temporary order, the legal standard in North Carolina is the best interest of the child.
In a modification proceeding there are actually two legal hurdles before a court may change the order. G.S. § 50-13.7(a) allows an child custody modification “at any time, upon a motion in the cause and a showing of changed circumstances,” except as otherwise provided in G.S. § 50-13.7A. (50-13.7A deals with certain situations where a parent is in military service).
The best interest of the child is not considered until there has been a showing of a substantial change affecting the child. The district court judge must find a substantial change of circumstances before it can change an existing order.
The party seeking modification has burden of showing changed circumstances. However, after there has been a showing of a substantial change affecting the child, neither party has a burden of proof on the question of best interest.
There is no statutory amount of time that must pass before a motion to modify may be filed as long as the person filing the motion can meet their burden and prove a substantial change of circumstances.
So what kinds of circumstances may the court consider? It is not possible to make an exhaustive list but the basic rules are:
- The change of circumstances must be substantial;
- The district court judge must consider changes that have salutary effects upon the child and those which will have adverse effects upon the child;
- Speculative evidence that a substantial change may occur sometime in the future will not support a change in custody.
- The evidence must demonstrate a connection between the substantial change in circumstances and the welfare of the child.
Raleigh family law attorney Scott Allen handles child custody cases every day and has over twenty-three years of experience. If you have questions or need assistance call him at (919) 863-4183 or email at [email protected].