Ask Carolyn: My Child's Mother is Unfit. What Can I Do?

Dear Carolyn,

I reluctantly entered into a consent child custody order with the mother of my child in 2013. We were never married and never actually lived together. The child is now five having been born in 2011. I get visitation under the 2013 order, but the court never heard any evidence in 2013. We simply agreed. Now, I am very concerned this mother is unfit. She continues to smoke around the child who has asthma. She also has been charged with drug possession in both 2012 and recently. She will not let me have a relationship with my kid. She threatens to move out of state. There are things I need to tell the court about from the child’s birth until 2013 (date of current custody order), but my attorney says I cannot use the 2011 to 2013 evidence in my motion to modify custody. I want primary custody with the mother having supervised visitation. Is there any way I can present the proof of what this mother was like from 2011 to 2013? I think the mother of my child is unfit. What can I do?

– Worried about unfit mother

Dear Worried,

You must have a material change of circumstances to modify a child custody order (North Carolina General Statutes Section 50-13.7(a).). Typically, the change of circumstances is a comparison between (1) the facts that existed when the 2013 order was entered and (2) the facts that exist now. For example, if the mother was a drug addict in sobriety in 2013 and now the mother is actively using illicit drugs, then that probably would be a material change of circumstances that entitles you to a custody modification. You will need to link the drug use to bad parenting. Typically, the judge will not allow evidence before 2013 “to prevent relitigation of conduct and circumstances that antedate the prior custody order.” Newsome v. Newsome.

Under limited circumstances, the trial court judge can permit evidence that pre-dates the current order, which in your case is an order signed in 2013. The North Carolina Court of Appeals recently addressed the issue of when the court should hear evidence that predates the current court order in determining whether there was a change in circumstances warranting modification of a child custody order. The new North Carolina case is Robinson v. Cain, and this case is close to your situation.

Robinson is the father and Cain is the mother. Robinson and Cain entered into a custody consent order, much like your situation. The court did not hear evidence of Cain’s drug abuse at the entry of the last custody order. The Court of Appeals held that Robinson should be permitted to present evidence pre-dating the existing custody order because the court had not heard the evidence.

You should be able to present the evidence concerning the mother’s unfitness from 2011 to 2013. Readers, treat this as cautionary. If the other parent has significant issues such as drug addiction, please don’t sign consent orders and then expect to bring up the drug addictions later. Put all of your child custody facts out there from the beginning in the best interests of your child. There is a narrow exception under Robinson and Newsome, but don’t plan your child’s life around narrow exceptions.

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Note that the answers in “Ask Carolyn” are intended to provide general legal information, and the answers are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need in your unique case. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by “Ask Carolyn.”

This blog is revised from a previous Ask Carolyn published in the Rhino Times.