Can Parents Use Evidence from a Previous Custody Case When Requesting to Modify an Order?

Modifying court-ordered custody arrangements in North Carolina requires a substantial change in circumstances and an impact on the child caused by those circumstances. What evidence must parents or guardians provide when showing a change has occurred? It depends completely on the specifics of each case, but one requirement is that the evidence must not be based on anything of which the court is already aware.

Smith v. Dressler

In Smith v. Dressler, the Court of Appeals addressed the issue of evidence that was previously provided to a trial court and whether modifications could be based on that information.

After the birth of the parties’ son, an order was entered granting Mother temporary primary custody in May 2018. Multiple hearings were held after that to modify the order, with the only change being additional visitation granted to Father. In October 2019, Mother notified Father that she had joined the military and would be attending basic training the following week. Shortly after, Father filed a Motion for Temporary Custody to present new evidence in the case. Father included in his Motion that Mother had misled him about her employment and failed to inform him about her military enlistment until one week prior to her leaving the state for basic training.

At a June 2020 hearing, the trial court orally gave Father primary physical custody and awarded Mother visitation during her exercised military leave. The order was not entered until more than six months later, in January 2021. Before the order was entered, Mother got married and conceived a child with her new husband. Mother was eligible for military discharge due to her pregnancy, and she moved back to North Carolina in November 2020.

Because the oral order had yet to be entered at that time, Mother sought to present new evidence, filed a Rule 59 motion, and filed for temporary custody. Father filed a motion to enter the oral order from the June 2020 hearing. In January 2021, the trial court did enter the order that was discussed orally at the hearing, granting primary custody to Father and visitation to Mother.

Mother asserted that the child had broken his leg jumping on a trampoline while in Father’s care; she also reported the injury to Child Protective Services. The medical examiner with CPS stated that significant neglect could not be diagnosed. Mother filed a motion modifying the custody order in February 2021, citing a substantial change in circumstances. The changes Mother alleged included:

• Mother had married and was expecting a child
• She had been medically discharged from the military
• She was moving back to North Carolina

She also mentioned injuries that the child sustained in Father’s care. The trial court ruled that a substantial change in circumstances had occurred and granted Mother primary custody with vitiation to Father. Father appealed.

The changes Mother mentioned in her request to modify custody had already been disclosed in her Rule 59 motion when she requested to present new evidence in the previous custody case. The Court of Appeals determined that the trial court was in error when it considered events that had been disclosed and considered prior to the entry of the previous custody order. The decision of the trial court was vacated and remanded.