Modifying Child Custody in Charlotte, NC – What is a Substantial Change in Circumstances?
Existing child custody orders in North Carolina, whether by consent or after trial, may be modified, subject to a finding of a substantial change in circumstances affecting the best interests and welfare of children... not the parent.
The moving party, seeking the modification of child custody, is not required to prove the change in circumstances was bad for the child or had an “adverse effect” on the children. It need not be something negative; beneficial changes may be relevant to the child’s welfare and best interests.
While allegations of adversity regarding the child or children are acceptable for the Court to consider, proof that the change in circumstances would be beneficial to the child or is likely to be beneficial to the child may also be the legal basis for a modification in child custody in Charlotte, North Carolina. (See: Shipman v. Shipman 2003 NC Court of Appeals)NC Child Custody Proceedings – Promoting the Best Interests of Children in North Carolina
The District Court Judge in North Carolina, in Charlotte Family Court, is charged with the primary responsibility to seek the best interests of children and their overall welfare. An 1883 legal opinion by the N.C. Supreme Court, ruling on the North Carolina child custody laws, put it this way in In re Lewis:
“The welfare of the infants themselves is the polar star by which the discretion of the courts is to be guided.”
As such, a petition to modify child custody or an emergency motion to modify child custody in North Carolina should center or focus on:
- Whether there is a substantial change in circumstances; and,
- Whether that substantial change in circumstances affects the welfare of the child or children; and,
- Whether it is in the child’s best interests to modify or change the existing child custody order
In reviewing a Charlotte Family Court Order, or any other child custody Order in North Carolina, our appellate courts determine whether the “findings of fact” are consistent with, and supported by evidence that is substantial. Family law attorneys may refer to that as “substantial evidence.”
The North Carolina state laws on child custody define substantial evidence as evidence, that is relevant to the proceedings, that a reasonable person or reasonable mind might adequate to support the conclusion. Family law attorneys regularly remind clients, trial courts (District Court Judges in Charlotte Family Court) are given a tremendous amount of discretion in making decisions regarding child custody and Motions to modify child custody. But for an abuse of discretion or findings of fact that fail to support conclusions of law, a Family Court judge generally will not be overruled.
Trial courts are said to be “vested with broad discretion” in making decisions in the initial Order of child custody. That’s true too when one of the parents files a motion to modify child custody or an emergency motion to modify.What Does a Family Court Judge Consider in Motions to Modify in Charlotte NC?
Generally, Family Court judges are provided an opportunity to see and hear the parties. That often means taking evidence from witnesses, providing the opportunity to cross-examine witnesses, and to consider their testimony together with all the other evidence presented at a hearing to determine whether a modification in child custody is necessary and proper.
In reviewing a Family Court Order, the appellate courts have commented that, “the bare printed record” often misses the “tenors, tones, and flavors” of trial testimony. As such, rulings on modification orders, even where there might be findings of fact with contrary or inconsistent evidence, will not be reversed or “disturbed,” as the appellate courts defer to the family court judge discretion.
Any findings of fact on motions to modify must show a connection with the welfare of the child and the substantial change of circumstances. There is said to be a link or “nexus” among changed circumstances and the welfare of children.
Courts may consider things like:
- A parent moving
- A parent living with another person or “cohabitation”
- Remarriage of a Parent
- Change in Financial Condition
- Evidence of a minor child’s mental health or well-being by qualified professional
- School Records
- Testimony from the Child
- Testimony from the Parent
- Record of School Absences
- Child’s poor performance at school, drop in grades, disciplinary history
Shell v. Shell 2018 opinion by the NC Court of Appeals
Primary physical custody granted to the father in the original child custody Order. Mother had substantial problems with stability, including drug and alcohol abuse, a series troubled relationships, lack of employment, and physically dangerous living conditions with broken bottles and trash in the household. The father had substantial mental deficiencies, including illiteracy, but resides with and receives help from his parents.
Mother later exhibited a long-standing dedication to sobriety, became involved in a stable relationship and was remarried, and was able to maintain suitable employment. Father refused to allow children to take homework to mother’s residence during visits and discouraged, failed to cooperate in parenting, or otherwise refused to share information about school events.
“If you have legal questions about Family Court in Charlotte, including filing a Motion to Modify Child Custody or Contempt of Court Punishment, we’re here to help. Our family law and divorce lawyers will explain your legal rights, suggest options, and work to meet your needs.”
– Bill Powers, Charlotte Divorce Attorney
Good choices are normally a function of possessing good information. That’s especially true when it comes to determining the best interests of children pursuant to a Court Order. Issues of modification, especially emergency motions to modify child custody are often emotional affairs. While there may be minor annoyances associated with visitation rights and contempt of court consequences for failing to comply with a pre-existing child custody Order in Charlotte NC, removing a child from another parent or substantially changing who has legal custody of child are important legal affairs.
Before doing anything, we recommend you consult with legal counsel. Taking action, without lawful authority or in direct contravention of a Court Order can subject you to Contempt of Court proceedings. There are also potential criminal charges for Felonious Restraint that may apply.
For sound legal advice and guidance, call Charlotte Family Law and Divorce Attorney Bill Powers: 704-342-4357.