Modification of Child Custody in North Carolina

North Carolina law allows for the modification of a child custody order under certain circumstances.   This article explores the  law and the circumstances allowing the trial court to modify a custody order.

This article assumes that a North Carolina custody order is in place.  A separation agreement that has not been incorporated is not a court order.  A parenting agreement or consent order that has been signed by the parents and the judge is a court order.  An order of a different state that has been registered to allow modification is also the kind of order that can be modified.

Recall that if a judge hears a child custody case where there is no order in place or there is only a temporary order, the legal standard in North Carolina is the best interest of the child.

In a modification proceeding there are actually two legal hurdles before a court may change the order.  G.S. § 50-13.7(a) allows an child custody modification “at any time, upon a motion in the cause and a showing of changed circumstances,” except as otherwise provided in G.S. § 50-13.7A.  (50-13.7A deals with certain situations where a parent is in military service).

The best interest of the child is not considered until there has been a showing of a substantial change affecting the child.    The district court judge must find a substantial change of circumstances before it can change an existing order.

The party seeking modification has burden of showing changed circumstances. However, after there has been a showing of a substantial change affecting the child, neither party has a burden of proof on the question of best interest.

There is no statutory amount of time that must pass before a motion to modify may be filed as long as the person filing the motion can meet their burden and prove a substantial change of circumstances.

So what kinds of circumstances may the court consider?  It is not possible to make an exhaustive list but the basic rules are:

  • The change of circumstances must be substantial;
  • The district court judge must consider changes that have salutary effects upon the child and those which will have adverse effects upon the child;
  • Speculative evidence that a substantial change may occur sometime in the future will not support a change in custody.
  • The evidence must demonstrate a connection between the substantial change in circumstances and the welfare of the child.

Raleigh family law attorney Scott Allen handles child custody cases every day  and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.