Picture this. The place was Charlotte, The year was Two-Thousand Twenty-___.... OK, enough with the Golden Girls routine. Let’s say you recently resolved child custody with your former spouse or partner, and now you want to change the custody schedule. Alternatively, maybe your former spouse/partner wants to change the custody schedule, while you want it to remain just like it is now. This article discusses how that process works, which might help equip you to accomplish your long-term goals as they relate to the parenting of your children.
First things first, let’s determine what kind of custody document you’re working with
Generally speaking there are two types of documents that determine your custody rights. One is a private agreement (often referred to as a “separation agreement” or “parenting agreement”), and the other is a court order. This is a highly important piece in the overall puzzle of modifying custody because the legal requirements are very different depending on which type of document applies to your case. This article will discuss each situation separately, so let’s get started.
When someone attempts to modify custody, it presents a two-prong approach. This means that the decision-maker (usually a Judge) must first make a determination as to the first prong. Depending on her answer to that prong, the inquiry might stop and the parties are sent home with no modification. However, if the court answers the first prong in a certain way, then she shall proceed and answer the second prong, which is really the meat of this entire discussion because it involves what the new custody schedule will be. So the first prong is procedural, and the second prong is “what will the new custody schedule be?” But be mindful of the great importance of both prongs, because focusing only one prong means you’ll likely lose your motion.
Here’s a quick preface to the two prongs discussed next. The first prong can be summarized as follows: Do I need to show that there’s been a change of circumstances since our current custody document was signed? You can see that this is a procedural question. The second prong is summarized like this: What should the new custody schedule be? Answer the first question completely before proceeding to the second.
Prong #1: Change of Circumstances (Private Agreement)
If your custody arrangement is governed by a private agreement, then you do not need to prove that there has been a change in circumstances to modify custody. Here’s how you can tell if you have a private agreement (as opposed to a court order). If both parents signed, but a Judge did not sign, then it is a private agreement. We usually call this a “separation agreement,” “parenting agreement,” or something similar.
This is great news for the parent who wants to modify custody, but it’s not-so-great for the parent who is happy with the way things currently are. In other words, from a procedural standpoint it can be easier to modify a custody agreement than it is to modify a custody order. You can simply proceed to Prong #2 below.
But first, I should take this opportunity to point out that many attorneys (myself included) usually prefer to resolve custody in the form of a court order rather than a private agreement. After all, I will only advise my client to sign off on a custody deal if it reasonably approximates what he or she is entitled to according to state law. If it’s a bad deal and we want to be able to easily change it later, then I’m unlikely to advise my client to sign it in the first place, after all. Talk with your attorney about this, however, because there are some nuanced considerations that you should take into account when deciding what type of document to use when you resolve custody.
Prong #1: Change of Circumstances (Court Order)
If your custody arrangement is governed by a court order, then before you may proceed to prong #2, you must first determine whether the circumstances have changed since the current order was entered. More specifically, North Carolina state laws on child custody require the moving party to prove that there has been a substantial change in circumstances related to the best interests of the minor child since the previous order was entered.
This is a rather substantial issue in scope because there is simply no simple definition of “substantial change in circumstances.” For example, if one spouse relocates, then surely that is a substantial change, right? Not so fast. If you relocate 5 minutes down the road from your last home, then no, that’s almost certainly not going to qualify as a substantial change. But if you relocate from NC to California, then yes, that’s very likely to be enough to meet the burden. What about Charlotte to Statesville, or even Charlotte to Asheville? Now we’re getting into the weeds, and we must look deeper into the circumstances to begin with. How often does the moving party have the kids in his/her care? How frequent are the exchanges? Are the kids in school or are they very young and stay home during the day? In other words, this is a gray area, and we must look deeper before we know if certain relocations constitute a substantial change.
Your situation is unique, and no other family is identical to yours. Similarly, no other parent is identical to you, or to your spouse. Perhaps you have remarried. Perhaps you’ve had another child with a different partner. Maybe your child was very young when the current order was entered, but now he is in high school and has much different responsibilities, interests and concerns in life. There are as many iterations of unique circumstances as there are families. The take-away here is that you must prove that there has been a substantial change in circumstances or the Judge will not have authority to modify custody, even if a different custody schedule would benefit the child. For good or ill, that’s the law, and it is very important for you to spend time focusing on this piece of the puzzle whether you are the parent who wants a different custody schedule, or if you like the custody schedule you have now but your former spouse/partner wants a different custody schedule.
Prong #2: Best Interests of the Children
If you’ve arrived at this prong in your custody case, then it means you’ve already answered the questions in Prong #1 properly, and the court has determined that you may now broach the question of what the new custody schedule be.
Here, the court is required by North Carolina law to be guided by one over-arching principle: what is in the best interests of the minor child. You will see this principle echoed elsewhere on this website, but nowhere is it more important than in a custody case.
Because this concept is so broad, I must address it in one or more separate articles. But we will cover it in summary here so that you get a feel for what it encompasses.
Best interest inquiries often include many of the same concepts, spoken broadly. Which parent is better equipped to provide a healthy, nurturing environment for the child? Maybe one or the other, maybe both are equally equipped. How involved is each parent in the child’s medical care, talking with providers, attending appointments, managing medications and treatments? How involved is each parent in the child’s academic life, helping with homework, maintaining an ongoing and consistent rapport with teachers, and managing the child’s weak areas while identifying and encouraging strengths? Does each parent know the child’s friends, parents of friends, and exercise good judgment in which relationships are healthy or unhealthy for the child to keep? Who does the grunt-work of parenting, which might include discipline, staying up while the child is sick, staying home from work when the child is sick, or managing disease states or allergies?
The list of considerations that the Judge may take into account could go on for several pages, and even then it would not be exhaustive. But the most important thing to remember is that the Judge cares about making a custody decision that is in the minor child’s best interests. Experienced child custody lawyers deal with these considerations each and every day, and they’ve probably tried a great deal of custody cases over the years. So they know what Judges want to hear before making a custody determination. It is highly advisable to talk with one of these lawyers before proceeding with any kind of custody matter in the court system. The cost of making a mistake, or failing to hit on an important topic in your presentation of evidence, is simply too great to risk.
What Happens Next?
At the end of this process, the Judge will consider all of the evidence presented and issue a ruling. This ruling will determine what each parent’s custody rights will be for the foreseeable future, and possibly until the child turns 18 years old and ages out for custody purposes.
What If I Don’t Want To Let A Judge Decide Who Gets Custody of My Kids?
For what it’s worth, Judges don’t want to be the ones who make this decision, either. They want the parents to decide between themselves. After all, who knows your kids better than you do? A Judge certainly doesn’t. But Judges are there for a reason, and if you cannot agree on a custody arrangement between the two of you, then it must be put before a Judge to make the decision.
Remember that you can always explore the possibility of resolving your custody dispute by agreement, rather than by going to court. This is a topic for a separate article, as you might resolve it by way of mediation, direct negotiations, or otherwise. In any event, it is possible to skip over many of the points outlined in this article if you can reach a custody agreement with your former spouse/partner. But be very careful to memorialize your agreement in the right way. This might involve a private agreement, or it could involve what’s called a “consent order,” which is a court order that the Judge signs, but the parties also sign. Look for a separate article that fleshes out this topic a bit more.
As always, this article is not legal advice, and it is important that you seek the advice of an experienced divorce attorney regarding your unique facts and circumstances before making any major decisions that might impact you or your family.