Parents who are separated or who are going through divorce can have custody and child support determined and ordered by a Court or they can enter into a consent order with terms for custody and child support. The custody order then controls custody and child support unless the parents agree otherwise or it is modified by the Court.
Generally, a custody order will contain a custody schedule and the parents should follow the custody schedule, but can agree to something different if a need arises. For example, it may say Dad has the children on Mondays and Tuesdays and Mom has the children on Wednesdays and Thursdays and they each have the children every other weekend. What if Mom has a work trip scheduled for an upcoming Wednesday and Thursday? She and Dad can voluntarily switch their parenting time. But what if, over time, this schedule stops working and is no longer in the best interests of the children? What if, for example, Dad and Mom entered into the custody order before the children began school and now the children are in middle school and traveling back and forth between Mom and Dad’s house during the week affects school, homework time and extracurriculars? Mom and Dad can agree to modify their custody schedule. For example, Mom and Dad may agree that alternating custody on a week on/week off schedule would make more sense for their tweens. When the children were younger, it may have made more sense for them to see both Mom and Dad every two or three days, but now this may not be as much of a need for these tweens. Keep in mind — the examples provided herein are merely examples and not an opinion as to what a custody schedule should be. The best interests of the child is the legal standard and every family’s situation requires an examination of what is in the best interests of their children.
In our example above, Mom and Dad agreed to voluntarily modify their custody order. They would likely enter into a new consent order to do this. But, what if Mom and Dad don’t agree? What if one parent believes the custody order should be modified but the other parent does not?
North Carolina law allows for a modification of an order for custody and child support based on a substantial change of circumstances affecting the children and that it would be in the best interests of the children to modify the order. N.C. Gen. Stat. 50-13.7. A change in circumstances is not limited to a certain type of change. However, the key factor is the whether the change affects the children. In Shipman v. Shipman, our Supreme Court explained the need to show the relationship between the change in circumstances and the welfare of the child as follows:
“[i]n situations where the substantial change involves a discrete set of circumstances such as a move on the part of a parent, a parent’s cohabitation, or a change in a parent’s sexual orientation, the effects of the change on the welfare of the child are not self-evident and therefore necessitate a showing of evidence directly linking the change to the welfare of the child.” 357 N.C. at 478, 586 S.E.2d at 256.
The Court also explained how this would be shown by giving the following examples: “assessments of the minor child’s mental well-being by a qualified mental health professional, school records, or testimony from the child or the parent.” Id.
As your children age, take note of how the custody order affects them. Are they doing well in school? Are they balancing their school work with extracurriculars and down time? Are they getting sufficient sleep? Are they happy and well-adjusted? Are they maintaining health relationships with friends and family? If you believe they are struggling, maybe it is time to revisit the custody schedule and propose changes to your co-parent.
If you need legal advice, as this can be a complicated area of law, seek a consultation with a family law attorney who can advise you of your rights and assist with a modification if it is warranted.
Parenting Out of the Trenches is a blog authored by Wofford Law Partner and Certified Parent Coordinator Rebecca B. Wofford. View the entire blog here