North Carolina Divorce Lawyers Blog
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North Carolina Requirements for Modifying Child Custody

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Child custody is often a highly contentious topic in family law because of both parents’ and guardians’ strong desires to spend as much time as possible with their child. If you currently have a permanent custody order in place, you may be able to have it amended. However, while it is possible for custody orders to be changed by the court, it is not something you can request on a whim; you must adhere to strict legal requirements.

North Carolina Requirements

Permanent custody orders require two elements in order for there to be a valid reason to amend them, which are:

  • A change in circumstances
  • The child’s best interests are not being served by the change in current circumstances[1]

North Carolina legislation states that a court order for custody can be changed at any time if a change in circumstances can be shown[2]. To get this process started, a Motion to Modify[3] must be filed with the court.

Showing that circumstances have changed is just the first part of the equation when attempting to modify a custody order. It is often more difficult to prove that the changes are affecting the child negatively or that amending the custody arrangement is now in the child’s best interests.

Henderson v. Wittig

A case in Iredell County in 2021 is a prime example of the complexities involved in attempting to modify a custody order. The parents in Henderson v. Wittig[4] were originally granted joint legal and equal physical custody with a two-week alternating schedule. The mother and father had disagreements and difficulties communicating with each other. The father filed a motion for contempt, which alleged the mother did not include him in parenting decisions or share health information involving their child. The court appointed a parenting coordinator to facilitate exchange guidelines, but the problems persisted.

Two years later, the mother filed a motion to modify child custody, and the final decision by the trial court was to grant decision-making authority on school and healthcare to the father. Upon the mother’s appeal, the appellate court vacated and remanded the lower court’s ruling, which means they reversed the decision to grant decision-making authority to the father. This ruling was based on North Carolina’s two-prong requirement for establishing the need for modification – a change in circumstances and detriment to the child.

The parents’ original custody order was based on a parenting agreement they signed rather than on a court’s finding of fact regarding the issues of the case. Because no findings of fact were involved in the initial order, the appellate court determined that the trial court should have made appropriate findings to establish a baseline before deciding on modification.

Custody Modification Process

Proving the need for a custody order modification is a complex process, which is why a Greensboro divorce lawyer is a valuable resource. Call Woodruff Family Law Group to find out how our custody lawyers can help you.

 

[1] North Carolina Judicial Branch. https://www.nccourts.gov/help-topics/family-and-children/child-custody

[2] North Carolina General Statutes. § 50-13.7. Modification of order for child support or custody. https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_50/GS_50-13.7.pdf

[3] North Carolina Judicial Branch. Motion to Modify. https://www.nccourts.gov/documents/forms/motion-to-modify-custody

[4] Henderson v. Wittig, 278 N.C. App. 178, 862 S.E.2d 369. https://www.nccourts.gov/documents/appellate-court-opinions/henderson-v-wittig