Typically, during the divorce process, custody is one of the most emotional, difficult, and potentially contentious issues that parties will have to address. After all, most people consider their children to be the most important, valuable, indispensable part of their lives. As a result, there can be an understandable amount of stress involved in trying to determine the best arrangement as far as who will have custody of the children following a divorce – will one parent have sole custody while the other has visitation rights? Will the parties share physical custody of the children, and try to divide the children’s time fairly equally at both residences? Or will they instead share legal custody, where the children have a primary residence, but both parents share equally in any decisions involving the children?
Regardless of whether the parents initially settle upon a custody arrangement that they believe is best for their children, or whether a court ultimately makes that determination, eventually in a divorce proceeding, the terms and details of the custody arrangement are established between the parties. In an ideal world, the custody arrangement would be a transition for any family, but would be one that ultimately went smoothly and was best for everyone involved. In many circumstances, this does in fact end up being the case – but unfortunately not always.
In some circumstances, for any number of reasons, families decide that the custody arrangement they have is no longer working for them. In those situations, they make seek a modification of the current custody agreement or order. Understandably, many who find themselves in this situation feel uncertain about what the law requires for a change in custody, and what steps they need to take to request the change in the first place. Ultimately, while everyone’s circumstances are slightly different, there are a some standard guidelines and procedures for changing custody. Of course, seeking the services of a knowledgeable and qualified family law attorney if you wish to seek a custody modification is a must, but being aware of these legal requirements can help to give you peace of mind and help to ensure that your are able to more accurately articulate what you feel would be the ideal custody arrangement to serve the best interests of your children.
Considering Your Current Custody Arrangement
Today, the divorce process is more collaborative than ever. In many ways, this is a positive thing – it allows families the flexibility to think about what would be the ideal way to resolve the important issues in their lives, and to work together toward agreeing upon those issues in a way that is satisfactory for everyone. Child custody matters are no exception. One thing to keep in mind, however, is that if parents decide to agree to a custody determination in a separation agreement, it is also the parents who must go back later to modify the agreement.
If you have a separation agreement in place, but not an official custody order entered by the court, you must first seek to renegotiate the existing separation agreement with the other parent. If you and your ex-spouse are able to agree that a new custody arrangement is in the best interest of everyone involved, you may modify your existing agreement with the help of your attorneys, sign the modified agreement, and begin incorporating your new custody arrangement.
Unfortunately, parties are not always on the same page as to whether modifying the existing custody arrangement is in the best interest of the children. In that case, if you have a separation agreement in place and you wish to have a court determine the issue, you must essentially request an “initial” custody determination from the court, in light of the fact that it would be the first time the court was involved in the matter. By making that request, you are officially bringing the matter before the court for its review and for a determination of your issues.
In order to avoid eventually finding themselves in this predicament, some couples, when initially deciding upon and resolving their custody issues decide to enter into a “consent order”. A consent order is essentially a hybrid between a separation agreement, which is created and signed completely out of court, and a traditional court order. A consent order is typically agreed upon and drafted out of court, and then submitted to a judge for approval. Once the order has been signed, it then carries the same weight as a traditional court order entered after trial, and can be modified by the court in the same way as a traditional order.
Regardless of what type of agreement or custody order you have in the first place, it is also important, for purposes of seeking a custody modification, that your child still be a resident of North Carolina. If your child has moved elsewhere and has lived in that state for more than six months, there may be jurisdictional issues to consider which are outside of the scope of this particular article. In those cases, consulting with a family law attorney who understands the requirements and complexities of the law and can help you to apply them to your particular circumstances will be essential.
In the end, it is important to realize that regardless of which type of custody order or agreement you have to begin with, a court ultimately can make a determination as to modification of custody if it ultimately becomes necessary – the route by which you travel to seek that modification is all that will differ. This begs the question – what is required before a court will modify custody? What must be proven? And how do you go about proving it?
Grounds for Modification
Once your custody issues are finally before the court, there is typically a basic, two-step test that you must pass before a court will consider making a modification to the existing custody arrangement:
- First, has there been a substantial change in circumstances since the original custody order was filed?
- Secondly, would modifying the child custody order be in the best interest of the child or children involved?
In order to pass the first hurdle, showing a “substantial” change in circumstances since the time that the original custody order was filed, there are a number of situations commonly found to qualify. These types of circumstances may include:
- The existing order was entered when the child or children in question was preschool-aged, and now the children are older, causing the current schedule no longer to work;
- One parent has lost a job;
- One parent has been forced to relocate;
- Drastic improvements in one parent’s life or pattern of conduct;
- One parent continually and habitually fails to follow the terms of the existing custody order;
- One parent has been found guilty of domestic violence or another crime following entry of the initial order that might endanger the children;
- One parent’s continual neglect of the children following entry of the initial order;
- One parent has gone to jail or prison;
- Any other circumstances that the court feels constitute a “substantial” change.
If a substantial change in circumstances has been established, the court will then turn to the issue of whether or not the modification of custody would be in the best interest of the child or children involved. The parent requesting the modification is the one responsible for presenting evidence showing that the modification is necessary and would serve the child’s best interests.
When assessing whether or not a modification of custody would be in the best interests of the child. Pursuant to N.C.G.S.A. § 50-13.2(a) the court, in attempting to determine what will be in the best interest of the child will consider a number of factors. While not all of the factors that the court may consider are set forth in the statute, several helpful examples are mentioned, including whether the modification will ensure the overall safety of the child, whether a stable home environment will be ensured for the child by making the modification, the wishes of the child, what is most likely to ensure the child’s present and future well-being, and whether the parent or parents receiving custody will adequately be able to provide for the child’s needs.
In making this determination, the court will carefully examine the conduct of both parents, the evidence presented, and any pertinent family history. Depending upon the age of the child(ren) involved, the court may choose to interview them privately in chambers, in order to better understand the family dynamics and the child-parent relationship. Typically, though not always, the older a child is, the more likely it is that their preferences will have on the judge.
Contact the Law Office of Dustin McCrary Today
If you find yourself in a situation where you believe that a modification of your existing custody arrangements may be necessary, you do not want to wade into those complex legal waters alone. You need an attorney on your side who understands all of the layers and complexities of the law, and who can put that knowledge to work for you as you work toward ensuring that your children’s best interests are protected. At The Law Office of Dustin McCrary, family law is our passion and our sole focus. We are committed to helping families just like yours work through the issues that are most important to you, and come out happier and healthier on the other side. Call us today. We look forward to helping you soon.