Many of the things that are agreed upon or ordered by the court during a divorce can be changed via a post-judgment modification.  Even though your order is marked as final or permanent, certain aspects of the order can possibly be changed.  The division of marital property and alimony awards are two things that usually can’t be changed.  But child custody, child support, and spousal support are able to be modified.

There are two basic situations where child custody orders could be modified.  The first is when one of the parents violates the current court order and the second is if one or both of the parents claim there is a change of circumstances.  Either parent is allowed to file a motion with the court to ask for a custody order to be modified.  Whoever is asking for the modification is the person who has to present evidence to the court showing why the modification is necessary.

Modifications as Response to Violation of Prior Order

If you are asking for custody or visitation to be modified because the other parent has violated your current order, you are required to provide proper notice.  Proper notice is always required with any motion to the court.  The person who filed the motion will have to present evidence in court showing the violations you alleged in your motion.  You can also ask that the other parent be held in contempt because of their violation of the order.  The same behaviors could be offered to the court as evidence for both custody modification and the motion on contempt.

If a parent violates a visitation order, the court will usually find them in contempt.  But being in contempt does not normally result in a change of the visitation schedule or custody.  However, sometimes visitation interference is seen as changed circumstance that could result in changing a custody order or visitation.  The court could also order additional visitation to make up for visitation that was missed, in addition to the regular visitation schedule.

The purpose of a contempt hearing is to punish a parent for not following court orders, not to punish the child.  In order for a judge to consider changing custody or visitation, it has to be in the child’s best interest.  A court could find that the violation of the court order warrants a change in visitation because it is in the child’s best interest, as happened in the 1986 North Carolina case of Wonick v. Wonick.

Woncik v. Woncik

Darlene and Edward Woncik were married and had a son.  After their divorce, they amicably shared visitation of their son.  However, things began to change after Darlene married her second husband.  She and her second husband “began to engage in a course of conduct that tended to reduce the status of Edward in the eyes of their child.”

It was stated in court that the behavior of Darlene and her new husband was not in the best interest of the child and the court ordered the following:

“Each of the parties is specifically directed not to do or say anything either intended to, or likely to, discredit or diminish the other party in the eyes of the child and each of the parties is specifically directed not to permit any other person to do or say anything in the presence or in the hearing of the minor child intended to, or likely to, discredit or diminish the other party in the eyes of the child.

Should the Plaintiff engage in any such conduct, or should she permit any other person to engage in any such conduct, the Defendant is directed to forthwith terminate the Plaintiff’s visitation privileges with the minor child and to report the matter to this Court and Plaintiff’s visitation privileges shall be terminated pending a hearing for the Plaintiff to show why she should not be adjudged in willful contempt of this Order.”

Of course, Darlene did not agree with the order from the trial court and appealed the order.  The court of appeals stated that custody isn’t to be used as a punishment when one parent is being uncooperative, and said that a citation for contempt would be appropriate.  But the court of appeals also said that any interference that seriously harmed the relationship of the child and non-custodial parent could warrant a change of custody because the court could conclude that the custodial parent is not looking out for their child’s best interest.

Some courts have previously held that when a parent interfered with the other parent’s court-ordered visitation, that parent had no respect for the authority of the court, which led the court to question their fitness for custody.  Based on this, any type of interference by one parent into the visitation of their child with the other parent is enough to ask the court to change the current custody order without being required to show the child is harmed.

During the review of the case, the court of appeals found that Darlene and her new husband were harming the relationship the child had with his father.  They were belittling Edward in front of his son purposefully.  It was determined at the trial court level that the actions of Darlene and her husband were affecting the welfare of the child and, based on the ruling of the court of appeals, when interference of visitation is negatively impacting the child’s welfare, the court could conclude that a change in custody would be justified.

Modifying Custody because of a Change of Circumstances

Courts have the option to modify a custody order or visitation order based on circumstances that have changed.  The welfare of the child must be affected by the change of circumstances.  The 1998 North Carolina Supreme Court case of Pulliam v. Smith shows that legal principle.

Pulliam v Smith

In California in 1982, Carol Pulliam and Frederick Smith got married.  During the marriage, they had two sons, Joey and Kenny.  In 1990, Carol left California and moved to Kansas to be with a boyfriend, William Pulliam.  Carol and Frederick’s divorce was finalized in 1991, the children being 6 and 3 at the time.  Two years later, Carol and William married.

At the time of the divorce, a custody order was agreed to by both Carol and Frederick.  Both parents had joint legal custody and Frederick had physical custody of the boys.  Frederick and the boys lived in North Carolina with Frederick’s grandmother until August of 1994.  At that time, in 1994, a gentleman by the name of Tim Tipton moved into the home and then the grandmother moved out.

Carol filed a motion for change of custody.  In the trial, the findings of facts were:

  • Frederick and Tim would kiss on the cheek and lips in front of the children;
  • Frederick and Tim would hold hands in front of the children;
  • Frederick and Tim had a party to celebrate their anniversary where other homosexuals were invited;
  • Frederick and Tim would occasionally go to places that catered to homosexuals;
  • Frederick and Tim were seen together in bed by Frederick’s son;
  • Frederick’s activities would “likely create emotional difficulties for the two minor children”;
  • The active homosexual lifestyle of Frederick and Tim was “detrimental to the best interest and welfare of the two minor children”;
  • Carol was “in a position to provide an environment more suitable to the two minor children’s physical and emotional needs.”

The trial court used the facts and circumstances above to determine that Frederick “was not providing a fit and proper environment to rear the two minor children.”  As a result, Carol was awarded full and exclusive custody of the children because the court found Frederick’s lifestyle to be a significant change in circumstances.  Fredrick was given reasonable visitation with his children but with the caveat that Tim could not be in the house when the boys were visiting their father.

Next, Frederick appealed the trial court’s decision to the court of appeals.  The court of appeals did not agree with the trial court and reversed their decision giving Carol custody of the boys.  Carol then appealed to the North Carolina Supreme Court, where the court of appeals decision was reversed.  This meant that the trial court’s original order stayed in effect.

Justice Webb did not agree with the majority’s opinion and said that the evidence presented at trial did not show that the children were experiencing emotional difficulties due to their father’s sexual orientation.  Everything presented in court showed that the boys were in fact well adjusted boys with good school attendance and average/ above average grades.  Justice Webb felt that the decision by the majority was based on the fact that the majority felt that the relationship of the father with his partner Tim was both distasteful and immoral and not based on if the children had adverse reactions to the relationship.

The majority did not agree with the dissent.  The majority discussed that the trial court ordered the change in custody because the father was engaging in sexual acts with Tim while the children were in the home, not because the father was a homosexual.  The majority said that a parent being a homosexual is not enough to deny custody to a parent.

What are Changed Circumstances?

Whenever a parent is looking to modify custody or visitation order, the change must be justified by showing that whatever the change in circumstances is, it is adversely affecting the child.  The person asking the court for the modification has to show:

  • A substantial change of circumstances that affects the child (whether negatively or beneficially) has happened;
  • A modification of custody or visitation is in the best interest of the child.
  • Substantial changes of circumstances may involve:
  • Present or future wellbeing of child;
  • Child’s relationship with the parents or other custodians;
  • Wishes of the child;
  • The parent’s or custodian’s character, personality, or conduct;
  • The child’s living or visitation environment.

When considering a change in circumstances, the court is looking to see if the change is both substantial and that it affects the child.  North Carolina does not require that the substantial change in circumstance be negative, it could also be positive.  For example, a parent who has struggled in the past with addiction has been able to show positive changes in their circumstances by being clean and having housing could justify asking the court to change their visitation or custody arrangement.

Not all positive changes in a parent’s circumstances would warrant a custody or visitation change.  For example, one parent now has significantly increased financial resources and can send the child to a private school, no longer committing domestic violence, or stopping abuse of alcohol would not always justify a modification.  The following factors are considered when a parent makes a motion to change the custody or visitation order:

  • Stability for the child;
  • Child’s wishes;
  • Age of child;
  • Domestic violence;
  • The emotional or physical health of a child or parent;
  • Whether a parent has attempted to alienate the child from the other parent;
  • Whether the child has physical symptoms of stress;
  • Whether a parent has tried to hinder the other parent’s visitation in a way that has harmed the child;
  • Whether the parent’s spouse or partner has demeaned the other parent in front of the child;
  • Extramarital sexual conduct by a parent (beyond cohabitation with a romantic partner) that has an adverse effect on the child;
  • Sexual abuse of a child by the parent’s boyfriend or girlfriend;
  • Relocation of a parent.

Any time there is a threat of abuse to a child, it is considered to be a substantial change of circumstance.  For example, in 2002, a mother of a 14-year-old girl became engaged to someone who had previously been convicted of taking indecent liberties with a minor.  He openly admitted that he had urges toward young girls and that he would be home alone with the 14-year-old girl if the mother continued to have custody of her daughter.  The court was able to find that this potential for abuse to the girl was enough to justify that custody needed to be changed.

Parental Relocation

There are two conflicting policies in regard to relocating a child with their custodial parent.  The first is that a parent who has physical custody was already determined to be the person who can best meet the everyday needs of the child. The person with physical custody has the right to decide where they live, and the court assumes that the custodial parent is acting in the best interest of their child.  The conflicting policy is that a child needs to have on-going and continued contact with both of parents and relocating would place a tremendous burden on the non-custodial parent in trying to visit with their child.

Both the parents and the court are able to place limitations on the custodial parent moving with the child.  The limitations could be that the custodial parent has to give a certain amount of notice prior to a move, or that moving out of state is not allowed.

Under North Carolina law, moving is not automatically considered a substantial change requiring that custody be revisited.  In order for the court to hear if a change is custody is warranted, the non-custodial parent is the one who has to prove harm to the child with the move and that the move is a substantial change.  The factors considered for best interest determination in cases of relocation are:

  • How the relocation would improve the child’s life;
  • The motives for the custodial parent’s move;
  • The likelihood of the custodial parent complying with visitation orders after the move;
  • Integrity of the non-custodial parent in fighting the move;
  • The likelihood that a realistic visitation schedule can be developed and kept in order to preserve and foster the child’s relationship with the non-custodial parent.

If one parent moves to a location that does not allow the current visitation to continue, North Carolina courts have determined that the move is a substantial change in circumstance and that custody and visitation need to be changed.  If the parents independently entered into a custody agreement that is not part of the court order, that agreement will be enforced just like any other contract.  But the court could modify that type of agreement.

If the courts have never been previously involved and the parents just have an agreement, best interest of child is the only standard to modify that agreement.  However, if an agreement becomes part of a court order, the parent would have to show the court a substantial change of circumstance and the effect on the child.  Then, the court would make a decision if changing custody or visitation would be in the child’s best interest based on the changed circumstances.

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