First, your child must still be a resident of North Carolina. If your child has lived elsewhere for more than six months, then you have what us lawyers like to call a “jurisdictional” dilemma. There is a complex set of rules and procedures that govern where the motion for child custody modification can be filed, depending on where the child currently lives, that is outside the scope of this article. However, if the child still lives where there lived when the original order was entered, then you are in good shape.
Second, you must have an actual order that would need to be modified. A child custody order means that a court file was opened and an order was entered (i.e. signed) by a judge. Lots of people will file a child custody action, but then resolved the case outside of court (typically via a separation agreement) and then dismiss the child custody action. In this situation, you would not be seeking a child custody modification, but rather you would be requesting an initial child custody determination. I know this seems confusing, but the takeaway here is that to request a child custody modification, you must have a valid child custody order in place. If you are not sure about this, then I recommend you go down to your local clerk of court, pull the old child custody file (or files) and look to see if there is a valid child custody order in the court file.
Just because the child lives in North Carolina and you have a valid child custody order in place does not mean you are out of the woods just yet. There are certain legal requirements that you must meet to prevail on a claim for a child custody modification. Typically, there is a two-step test:
Has there been a substantial change in circumstances since the original child custody order was filed?
Would modifying the child custody order be in the child’s best interest?
Here are a couple of examples of things that could represent a “substantial change in circumstances” that would warrant a change of custody:
The existing order was entered when the child was pre-school age, and now the child is older and the old schedule no longer works
One parent has lost a job and/or been forced to move away
One parent continually and habitually fails to follow the existing order
One parent has developed significant health problems that impact their ability to parent or take care of the child
One parent has gone to jail/prison
There may be more than one factor in play that would tend to show the court that a substantial change in circumstances has occurred. The motion for modification needs to set out what substantial change in circumstances has occurred.
Next, you must allege in the motion that the modification would be in the child’s best interest. This is the most important factor for any judge that is hearing a child custody case – and is something that you must understand. When you go into court requesting anything related to custody, there is no guarantee about what the court could do. If the court finds that there is has been a substantial change in circumstances, they could agree that your proposed schedule is in the children’s best interest, or they could agree with the proposal of your child’s other parent. Or, they could just come up with a schedule of their own that they think would be in the child’s best interest. Kind of scary, huh?
One other thing, you are permitted to request attorneys fees in conjunction with a motion to modify child custody. So if you think you need help paying for your lawyer, and your child’s other parent is in a position that they can afford to pay your legal fees, then you will want to include this request in you motion. If you hire a lawyer to assist you with this, they will typically include the request for attorneys fees in the motion they draft.
This is a lot of power for the court system, and is one reason that we advocate for methods of alternative dispute resolution before you get in a position that the court is forced to decide issues of child custody.