Modifying Child Custody in North Carolina

Child custody arrangements aren’t always set in stone. They can be modified as time goes by and the child’s needs change. But it’s vital to understand that you can’t just change a custody order that has been issued by a judge unilaterally on your own — a motion must be filed through the court to modify the existing order for the changes to be enforceable. Importantly, a judge will consider both negative and positive substantial changes in deciding whether to grant a custody modification.

Reasons to Modify Child Custody

In order for a judge to grant a child custody modification, the parent requesting the change must prove that there has been a substantial and material change in circumstances that affect the child. If the court finds that this requirement is met, it will consider a modification if it is in the best interests of the child.

Common reasons to modify child custody include the following:

• The child’s needs have changed — A common reason to request a modification of an existing custody order is because the child’s needs have changed as they grew older.
• The circumstances of one or both parents have changed — If a parent suffers from a health problem, loses their job, has been jailed, or they are no longer able to provide a suitable living environment for the child, a judge might find that there are circumstances warranting a custody modification.
• The custodial parent relocates — If the custodial parent is planning to move out of state, the court might grant a modification if their stability would be impacted.
• One parent disregards the terms of the custody order — A judge may find a modification is appropriate if a parent disregards or violates the terms of the custody order.
• The child’s safety or welfare is in danger — In the event the child is subject to abuse, neglect, or placed in harm’s way when they spend time with a parent, custody may be modified.

Other factors a court might consider when it comes to modifying custody may include whether there has been a history of domestic violence, or instances in which one parent attempts to alienate the child from the other parent. A modification might also be granted if a parent attempts to hinder visitation or the emotional stability of a parent has significantly changed.

How to File a Motion to Modify Child Custody

To request a change in custody, several documents and affidavits must be filed with the court. These include a Motion for Modification, a Domestic Civil Action Cover Sheet, a Certificate of Service of Process, an Affidavit of Status of Minor Child, a Servicemembers Civil Relief Act Affidavit, and documents concerning custody mediation. However, parents can also resolve custody modification matters on their own and submit their new agreement to the judge.

All North Carolina custody cases that are not settled outside of court must usually go through the Custody Mediation Program before the matter can be heard by a District Court Judge. Even if you previously participated in custody mediation, another session might be required to modify the existing order.

When you file your motion for the modification with the court, you will be provided with a “Custody Mediation Cover Sheet and Notice for Custody Mediation Orientation” which will give notice of the date, time, and location of the mediation session. This notice must be served on the respondent, along with the motion and the other papers in the case. Critically, if service of process is not effectuated properly, the court will not hear the case.

If the mediation session does not end in a settlement, an Order to Calendar will be sent to both parties by the Custody Mediator to place the case on the court calendar.

When Can You Make an Emergency Motion to Modify Child Custody?

If your child is in imminent danger, you may need to file an ex parte emergency motion to temporarily change custody. However, a court will only grant an emergency order in limited situations. A temporary order for custody that changes the child’s living arrangements will only be granted without prior notice to the other party if the court finds that there is a substantial risk of bodily injury, sexual abuse, or abduction.

Since an ex parte order is only in place temporarily, the court will hold a second hearing to give the other side an opportunity to appear and respond to the allegations. After the hearing, the judge may issue another temporary order which will be in effect until the hearing for permanent custody.

Contact an Experienced North Carolina Family Law Attorney

When it comes to custody matters, your child’s well being should be first and foremost. If you are facing a custody modification issue, it's essential to have experienced counsel on your side who can help ensure you reach the best possible results in your case — and the best interests of your children are met. With offices located in Moyock and Elizabeth City, The Twiford Law Firm, P.C. provides reliable representation for family law matters throughout Northeastern North Carolina and the Outer Banks. Contact us today to schedule a consultation to learn how we can help.