North Carolina Divorce Lawyers Blog
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Change in Circumstance or Best Interest: Which Comes First?

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Child custody orders in North Carolina are binding, and both parents must abide by the terms to avoid facing legal consequences. Despite this, it is possible to modify an order if there has been a change in the circumstances of either party and if the modification is in the best interest of the child. How does a judge weigh these two considerations, and does one factor need to be proven before the other?

Two-Pronged Approach to Modification

North Carolina law allows either party to request a modification to the custody order if there has been a change in circumstances.[1] However, custody is awarded based on the best interest of the child.[2] Neither factor is a prerequisite for the other. Courts can determine overlapping best interest evidence and change in circumstances evidence, as the Court of Appeals did in Cash v. Cash.[3]

Cash v. Cash

In the Cash case, Mother was originally granted primary legal and physical custody with visitation for Father. Eight years after this initial order was entered, Father filed a motion to modify, alleging a change in circumstances. Father claimed that Mother denied his visitation with the child, blocked Father’s efforts to contact the child, refused to inform him of medical care decisions, and interrogated the child after Father’s visitation.

Father presented testimony regarding the change of circumstances, but the trial court refused to allow any testimony evidencing how the change affected the best interest of the child. The trial court ultimately denied Father’s motion for modification, and he appealed the decision.

The Court of Appeals determined that the lower court abused its discretion by not allowing Father to present evidence to show how any changes in circumstances affect the child’s best interest. Mother argued that this process involves two steps, the first of which is proving a substantial change in circumstances. The appeals court disagreed, stating that the two factors can be considered concurrently. The two-prong approach for deciding on a motion to modify custody was misunderstood by the trial court in the Cash case. The order was vacated, and the case was sent back to the lower court for reconsideration.

A Greensboro divorce lawyer can help you determine how the change in circumstances and best interest factors apply in your case. Contact Woodruff Family Law Group to discuss your current order and how a request for modification may impact custody and visitation arrangements.

[1] N.C.G.S. § 50-13.7 https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_50/GS_50-13.7.pdf

[2] N.C.G.S. § 50.13-2. https://www.ncleg.gov/enactedlegislation/statutes/pdf/bysection/chapter_50/gs_50-13.2.pdf

[3] Cash v. Cash, 2022-NCCOA-403. https://law.justia.com/cases/north-carolina/court-of-appeals/2022/21-156.html