North Carolina law offers no preferential treatment to either parent in case of the child custody dispute unless there are compelling reasons to do so. The court always considers the best interest of the child in awarding child custody. Many decisions taken by the court in a custody order or certain aspects of it can be changed via post-judgment modifications, even though the earlier order was final (usually called a Permanent Custody Order).
To apply for the child custody modification effectively and without causing mistakes that surface during the early stages and then again at later stages, you’ll need to instruct your lawyer to draw up and file a Motion for Modification of Custody or visitation.
As per the North Carolina child custody modification law the parent should file a motion through the court to modify the plan. The motion will require specific information such as names and addresses of both parties, date in which the current order went into effect, the reason for your change request, proposed changes and the names and birth dates of the children affected in addition to other, statutorily required information.
When the pleading has been approved by the client, it needs to be signed in front of a notary public as required by Court Rule. Then, the documents are filed with the North Carolina District Court Civil Filing Department. The stamped and filed Motion must then be “served” on the other party in accordance with Court rule.
The difficulty then begins of scheduling the case for both Mediation (which is now required by law in North Carolina) and for an ultimate Trial (or “hearing”) on the issues involved with the custody Motion.
Mediation is a relatively new requirement and the scheduling of the Mediation itself can often lead to more difficult than the actual filing of the Motion to Modify, as folks tend to find both the requirements for attending Mediation and the Mediation itself surprising and confusing.
For example, both parents must attend a “Parenting Under Two Roofs” class prior to mediation and an “Orientation” for Mediation, which is meant to prepare you for the Mediation itself. Your lawyer can help a great deal with navigating and explaining these requirements. At Culbertson and Associates, we help assert fathers right in these cases and provide strong as well as effective representation to mothers and grandparents at the same time.
If the Mediation is not successful, the parties will have to attend the custody hearing and present their cases to the judge with effective evidence and testimony, and the judge will decide if the custody would be modified or not.
If there is already a Permanent Custody Order in place, the parties requesting child custody modification needs to prove substantial change and material change in circumstances to the court. If the court is satisfied with such a change in circumstances, it may consider such modification as the best interest of the child require. This process discourages the frequent modifications which may affect adversely the child. However, the procedure has complex sets of the rule which govern the modification of child custody.
One often overlooked but the prime important factor is whether the child is a resident of North Carolina. However, if he resides at the same place where the original order was entered, then there is no complexity. But if the child has been residing elsewhere for the past six months, it may cause a ‘procedural’ dismissal of the Motion.
Secondly, there must be an actual order in place in order to be modified. A child custody order means that the court file was opened and the order was previously entered by the judge.
If the parties had previously filed for child custody and later resolved the matter outside the court while dismissing the child custody, then the parties would not be able to seek such modification. In such cases, parties can request an initial child custody determination to acquire a valid child custody order.
However, if there was a previous Separation Agreement or a notarized custody agreement between the parties for custody, the court will give that written agreement a considerable amount of weight in making changes to it or in carving out a new custody arrangement. The reason for this is that if the parties have been following such an agreement, the child has grown used to it – and too much change is not viewed as good for a child.
Just bear in mind that if the child custody is a part of a court order the parent seeking for it, needs to file a motion for modification of the custody order. If both the parties agree on the modification, they can submit it to the judge for approval. This is known as a consent order which is often the best approach.
If a parent wants to seek a modification, the change must be justified by a change in circumstance which must be adversely affecting the children. If you wish to seek the modification due to the violation of the order held by the other parent, your lawyer will need to provide proper notice for the motion to the opposing party or his lawyer. Your lawyer can also motion the court for contempt in order to punish the other parent who has violated the rules.
If the parent having custody is relocating to another state which may cause an impact on the child’s stability then the court may consider a modification of the existing Order to be in the best interest of the child, so that the child can move to the other State with the primary custody parent. The court can also include revised visitation so that the child is not deprived of the time with the other parent.
If there is a significant change in lifestyle of the custodial parent which the court thinks could affect the child, then it may consider modifying the custody. In such cases, interested third parties like grandfather or relatives are also eligible to file a motion in order to intervene and share custody.
Documents that you can present to the judge during the modification hearing:
There are two situations in which the court may consider the modification of child custody: if any rule is violated following the current court order; or if either or both parents claim a change in circumstances.
For example, if at the time of such order the child was preschool age and now has attained majority, it is possible to modify the custody in cases where the old order provided only for pre-school and did not address Primary School. Other examples might be where the custodial parent has lost his job, suffering from a health problem, has been jailed or fails to follow the existing order. Also considered might be situations where the behavior or relationship of the custodial parent with a child is not good or the child is not living in a suitable environment.
There may be more than one factor at play that may be considered to be “substantial change” depending on the circumstance. Therefore it is strongly advised that you contact a professional child custody modification lawyer in North Carolina for a consultation and for legal representation.
The court can consider both positive and negative substantial changes. These changes can also lead to a change in visitation or custody arrangement of either of the parent (i.e., positive change in the financial status of either parent or no consumption of alcohol, etc.) But all the positive change may not be taken into consideration by a Court and a lawyer would generally know which positive changes to emphasize.
The following factors are considered when a parent makes a motion to change the custody or visitation order:
Custodial court orders and rights granted are strictly binding to the parties and violations can lead to significant consequences. If you want the court to fully consider your interest before giving the court orders, then you should consult a good North Carolina child custody attorney at the beginning of the process so that your rights are considered and protected. If you need modification in the child custody, you may also seek the help of an attorney for explaining the process, in order to determine whether it is a step worth taking prior to actually taking it. This process is called the consultation process, and it is usually very useful.
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