Can North Carolina Custody Orders Include Self-Executing Modifications?

Self-executing modifications are provisions within a contract or order that amend the terms upon a specified event that may occur in the future. The legality of these provisions varies from state to state; some states have determined that self-executing modifications are typically illegal, and others have yet to make any clear or definitive decisions about the legality of such terms.

The North Carolina Court of Appeals case of Madison v. Gonzalez-Madison involved a self-executing modification in a custody order, and the appellate court’s ruling provided clarification on North Carolina’s laws regarding this issue.

Background of the Case

Father appealed the trial court’s order granting primary physical care, custody, and control to Mother.

Both parents are active-duty members of the military, and their child was born in 2019 while they were stationed at Fort Bragg. They separated shortly after the child’s birth and agreed to a temporary custody order granting them joint legal and physical custody. In 2022, both Mother and Father were stationed in Hawaii, with Father moving in February and Mother moving with the child in May.

In February 2023, the trial court in North Carolina held a virtual Webex hearing to make a determination on permanent custody arrangements. An order was entered about four months later granting joint legal custody and awarding Mother primary physical care, custody, and control of the child. Father appealed.

In his appeal, Father argued that the trial court erred in determining that it was in the child’s best interest for Mother to have primary physical custody. The Court of Appeals noted that the trial court made some findings that would suggest it would be in the child’s best interest for Father to have primary physical custody, but other findings suggest the opposite. Ultimately, the appellate court could not say that the lower court abused its discretion in this issue.

North Carolina’s Standing on Self-Executing Modifications

Father also contested a provision in the custody order that would only go into effect if either or both parents relocated from Hawaii. In past cases, the Court of Appeals ruled that proposed changes that are appropriate rather than arbitrary may be included as self-executing modifications in custody orders. However, in Madison, the change of circumstances in the order may or may not occur and is too speculative to be considered appropriate. The appellate court ruled that the trial court made a mistake by including such terms.

This decision clarifies that North Carolina does allow self-executing modifications in child custody orders, but they cannot be arbitrary or speculative. As long as the self-executing modification is appropriate, such as a change in visitation or custody once a child starts kindergarten, it will likely be allowed in North Carolina. Answers to questions in child custody matters can be obtained by contacting an experienced family law attorney.