Parents in North Carolina can request that the court modify a custody order, but changing custody and visitation arrangements will only be possible in certain situations.
North Carolina Law
State law establishes that either party to a custody order is allowed to file a motion to modify or vacate the order at any time if they can show a change in circumstances. Further, case law says that the change can have either a positive or negative effect on the child. Once a court determines that a change has occurred, it must then assess whether the change has affected the child. When a substantial change affects the child’s welfare, a change in custody according to the child’s best interests is warranted.
North Carolina law also allows the wishes of the child to be considered in custody cases if it is reasonable based on the child’s age and discretion. Additionally, if the minor’s preferences are to be included in a judge’s determination of custody, the basis must be a rational judgment of the situation by the child. Even in cases when the court does allow the child’s wishes to be considered, it does not base its decision solely on those wishes.
Johnson v. Lawing
In the case of Johnson v. Lawing, Mother appealed a trial court’s decision to deny her motion to modify custody, stating that the court abused its discretion by not making findings regarding the wishes of the minor child.
Father had primary physical custody, and Mother had visitation. As part of her request to modify custody, Mother stated, among other things, the following:
- She had moved into a suitable home.
- The child wanted to live with Mother.
- The child claimed he did not see Father very often.
The trial court determined that a substantial change in circumstances had occurred, but it was not shown how those changes would impact the child’s best interests. Findings of fact from the trial court include:
- Father and the family, including the child, have dinner together each night.
- The child was involved in activities and maintained good grades.
- The child has stated his desire to spend more time with Mother.
The Court of Appeals declared that the trial court’s findings are proof that it considered the child’s testimony in its decision. It was not an abuse of discretion by the lower court when it determined that a change to the existing custody order was not necessary to promote the child’s best interests. The child’s preference was not given any more weight in the trial court’s decision because the ultimate determination in custody and visitation cases is in the best interests of the child.
The appellate court consequently affirmed the lower court’s decision to deny Mother’s motion to modify custody.