When Can Child Custody be Modified?

Post-judgment modifications can change many things that have been agreed to or ordered about a divorce.  The fact that an order is marked “final” or “permanent” does not necessarily mean that it can’t be changed.

Child custody, child support, and spousal support can all be modified.  However, awards of alimony or divisions of marital property can usually not be revisited later.

Child custody orders may be modified in two basic situations:

  • when a parent has violated a court order, and
  • when one or both parents allege changed circumstances.

Either parent may bring a motion to modify a child custody order.  The burden is on that parent to present the evidence to prove that the modification is justified.

Modification of Custody or Visitation Order in Response to Violation of Previous Order

As with any motion, a party seeking modification of a custody or visitation order based on the other party’s violation of that order must provide the other party with proper notice.

At the hearing on such a motion, the moving party will need to present evidence of the violation(s) of the previous order.  At the same hearing, the moving parent may also seek to have the other parent held in contempt of court for violating the previous order.  The same conduct might be presented as evidence to support both the modification request and the contempt motion.

A parent who violates a visitation order will ordinarily be found in contempt of court.  Normally, a finding of contempt will not lead to a modification of custody or visitation.  However, in serious cases the court might conclude that the interference with visitation was itself a “changed circumstance” meriting a change in the custody and/or visitation order.

If a visitation order has been violated, the court can also order “make up” visitation, and set a calendar for this.  This would not affect the visitation schedule in general, after the “lost” dates had been made up.

A contempt proceeding is intended to punish the parent, not the child.  Thus, any change in custody or visitation must be in the best interest of the child.  However, a court may decide that a violation of a court order indicates that a change is in the best interests of the child, as in the following 1986 North Carolina case.

Woncik v. Woncik

According to the trial court that first ruled on the dispute, after Darlene Woncik met her new husband problems began to develop with visitation with respect to her former husband, Edward.  After Darlene married her new husband, “she began to engage in a course of conduct, along with her husband, that tended to reduce the status of [Edward] in the eyes of [their] child.”

The trial court noted that this type of behavior is not in the best interest of the child, and it issued the following order:

Each of the parties is specifically directed not to do or say anything either intended to, or likely to, discredit or diminish the other party in the eyes of the child and each of the parties is specifically directed not to permit any other person to do or say anything in the presence or in the hearing of the minor child intended to, or likely to, discredit or diminish the other party in the eyes of the child.

Should the plaintiff [Darlene] engage in any such conduct, or should she permit any other person to engage in any such conduct, the defendant [Edward] is directed to forthwith terminate the plaintiff’s visitation privileges with the minor child and to report the matter to this Court and plaintiff’s visitation privileges shall be terminated pending a hearing for the plaintiff to show why she should not be adjudged in willful contempt of this Order.

Darlene disagreed with this order, and she appealed.

The court of appeals noted that child custody “cannot be used as a tool to punish an uncooperative parent.”  Thus, interference with visitation would normally only warrant a contempt citation.  However, continued the court,

where, as here, such interference becomes so pervasive as to harm the child’s close relationship with the noncustodial parent, there can be a conclusion drawn that the actions of the custodial parent show a disregard for the best interests of the child, warranting a change of custody.

The court noted that some courts had held that interference with court-ordered visitation showed a lack of respect for judicial authority, calling into question the fitness of the custodial parent.  Under this theory, interference with court-ordered visitation alone is enough to warrant a change of custody, “even without a showing of harm to the child, provided that the parent seeking custody is a fit and proper person to have custody.”

However, the North Carolina court of appeals was not prepared to go quite that far.

The court of appeals did find that the evidence showed that Darlene had both interfered with Edward’s visitation rights and engaged in conduct undertaken to deliberately belittle him in the eyes of their child.  The trial court had held that these actions affected the welfare of the child, and the court of appeals found that interference with visitation which has a negative impact on the welfare of a child can constitute a change of circumstances which justifies a change in custody.

Thus, there can be considerable legal overlap between the law relating to modifications due to violation of orders and modifications because of changed circumstances.

Modification of Custody or Visitation Order Due to Changed Circumstances

As discussed above, a court may modify a custody or visitation order due to changed circumstances.  These circumstances must affect the welfare of the child.

The following 1998 North Carolina Supreme Court decision illustrates the legal principles involved.

Pulliam v. Smith

Carol Pulliam and Frederick Smith were married in California in November, 1982 and later became the parents of two boys, Joey and Kenny.  The parents separated in 1990 when Carol went to live in Kansas with her boyfriend William Pulliam, and the parents were divorced in 1991.  At the time, Joey was six and Kenny was three.

Carol and Pulliam married in 1993.

Under the consent decree between the parties, the parents had joint legal custody of the children, and the father had physical custody.  Until August, 1994, the boys lived with Frederick and his grandmother in North Carolina.  Carol had the boys with her for two months during the summers and also at Christmas.

In August 1994, Tim Tipton moved in with Frederick and Frederick’s grandmother moved out soon afterward.

The trial court made the following findings of fact:

  • That Frederick and Tim often kiss on the cheek and sometimes on the lips in front of the children.  That they would often hold hands in front of the children.
  • That Frederick and Tim had at least one party for homosexuals at their home to celebrate the anniversary of the day they met.
  • That Frederick and Tim had on at least three occasions gone to an establishment which catered to homosexuals.
  • That Tim keeps pictures of “drag queens” in the bedroom he shared with Frederick, and these were not under lock and key so that it was possible for the children to gain access to them.
  • That Joey on one or more occasions observed his father and Tim in bed together.
  • The activity of Frederick would “likely create emotional difficulties for the two minor children.”
  • The active homosexuality of Frederick and his involvement with Tim was “detrimental to the best interest and welfare of the two minor children.”
  • Carol was “in a position to provide an environment more suitable to the two minor children’s physical and emotional needs.”

Based on the above findings (among others), the trial court concluded that Frederick was “not providing a fit and proper environment in which to rear the two minor children.”  The judge found that there had been a substantial change in circumstances and awarded exclusive custody to Carol, subject to reasonable visitation by Frederick.  The trial court directed Frederick not to allow the boys to live in the same house as Tim during visitation.

Frederick appealed, and the court of appeals reversed the trial court.

The North Carolina Supreme Court then reversed the court of appeals.

Justice Webb dissented from the majority opinion:

The majority also relies on finding of fact 53, in which the district court speculated on the possibility that their father’s homosexuality will likely create emotional difficulties for the two children. The only evidence that the children actually suffered emotional difficulties was testimony that the older child, when he was told his father was homosexual, cried and asked his mother to remove him from his father’s home. This child said at the hearing that he had no preference as to which of the parties was given custody. All the evidence showed the children were well adjusted. They had good attendance records in school and maintained average to above average grades. There was not substantial evidence to support a finding of fact that the defendant’s homosexuality will likely create emotional difficulties for the two children.

The difficulty with the majority opinion for me is that it recites actions by the defendant which the majority considers to be distasteful, immoral, or even illegal and says this evidence supports findings of fact which allow a change in custody. There is virtually no showing that these acts by the defendant have adversely affected the two children. The test should be how the action affects the children and not whether we approve of it. I believe the evidence shows only that the defendant is a practicing homosexual without showing any harm has been inflicted on the children by this practice. I do not believe we should allow a change in custody on evidence which shows only that the defendant is a practicing homosexual.

The majority of the court disagreed with the dissent’s characterization of the decision:

We do not agree with the conclusion of Justice Webb’s dissent that the only basis upon which the trial court changed custody was that the defendant is a “practicing homosexual.” Instead, we conclude that the trial court could and did order a change in custody based in part on proper findings of fact to the effect that defendant-father was regularly engaging in sexual acts with Mr. Tipton in the home while the children were present and upon other improper conduct by these two men. The trial court did not rely on the mere fact that defendant is a homosexual or a “practicing homosexual.” Nor does this Court hold that the mere homosexual status of a parent is sufficient, taken alone, to support denying such parent custody of his or her child or children.

Pulliam v. Smith remains controlling law in North Carolina.  The state adopted a constitutional amendment in 2011 specifying that “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.”  However, recent US Supreme Court decisions involving gay marriage and gay rights in general may affect future North Carolina cases involving the custody and visitation rights of gay parents.

Changed Circumstances

To justify modification of custody or visitation orders, North Carolina law requires a change in circumstances that “adversely affects the child.”  This does not mean that the child is endangered by the change.

The parent or other party seeking modification must show:

  • there has been a substantial change of circumstances that affects the child (whether adversely or beneficially); and
  • modification is in the best interest of the child.

Substantial changes of circumstances may include those involving:

  • the child’s present or future well-being,
  • the child’s relationship with the parents or other custodians,
  • the child’s wishes,
  • the character, personality, or conduct of the parents or other custodians, and
  • the environment in which the child is living or visits.

The change must not only be substantial, it must also affect the child.  The effect may be positive;  North Carolina law no longer requires proof of an adverse effect.

For example, a parent overcoming drug addiction is a positive change that could result in a substantial beneficial change to the relationship between parent and child, justifying a change in custody or visitation.

But not all positive changes will justify a change in custody or visitation.  For example, the fact that one parent can now pay for private school or similar benefits will not necessarily justify a change.  Nor will the fact that one parent no longer commits domestic assaults and abuses alcohol.  Remarriage of one parent, on its own, does not necessarily merit a change.

Factors to be considering in a motion for modification of a custody or visitation order include:

  • stability for the child;
  • the wishes of the child;
  • the child’s age;
  • domestic violence (involving a parent or a parent’s spouse or domestic partner);
  • the emotional or physical health of a child or parent;
  • whether a parent has attempted to alienate or estrange the child from the other parent (as in the Woncik case above);
  • whether the child has physical symptoms of stress;
  • whether a parent has tried to frustrate the other parent’s visitation in a way that has harmed the child;
  • whether the parent’s spouse or partner has demeaned the other parent in front of the child;
  • extramarital sexual conduct by a parent (beyond cohabitation with a romantic partner) that has an adverse effect on the child;
  • sexual abuse of a child by the parent’s boyfriend or girlfriend;  and
  • relocation of a parent.

The threat of abuse to a child may be considered a substantial change of circumstances. In the 2002 McConnell case, for example, the mother of a 14-year-old aspiring model became engaged to a man who had been convicted of indecent liberties with a minor.  He admitted his inappropriate urges towards teenage girls, and also admitted that he would be at home alone with the girl if the mother retained custody.  The court found this sufficient to justify a change in custody.

Sexual conduct must be considered as only one in a mix of relevant factors.

In the 1973 Spence v. Durham case, the mother was able to re-take custody of her daughters from their paternal grandparents despite her alleged past conduct that the court said was “beyond the pale of the most permissive society,” including her alleged “homosexual tendencies.”

Relocation of a Parent

Relocation of a parent with physical custody of a child requires the balancing of conflicting policies.

The parent with physical custody is deemed the parent best able to meet the daily needs of the child.  Physical custody includes the right to determine where the child lives.  Thus, if the custodial parent decides to move with the child, a court will generally assume that the move is in the child’s best interest.

On the other hand, public policy favors the child having continuing contact with both parents, and relocation may impose a heavy burden on the non-custodial parent’s visitation rights.

The parents, or the court, can set limits on relocation in the original settlement or order.  These limits can include a provision for notice before moving, or an outright prohibition on taking a child out of the state.  The parents may also agree in advance to relocation if needed, to avoid later disputes.

North Carolina law does not assume that a move is a substantial change of circumstances that will justify a change in custody.  As the state Supreme Court has said:

[T]he court’s primary concern is the furtherance of the welfare and best interests of the child and its placement in the home environment that will be most conducive to the full development of its physical, mental, and moral faculties. All other factors, including visitorial rights of the other applicant, will be deferred or subordinated to these considerations, and if the child’s welfare and best interests will be better promoted by granting permission to remove the child from the State, the court should not hesitate to do so.

The burden is thus on the non-custodial parent to prove that the move is a substantial change of circumstances and that it is harmful to the child.

A court may not consider relocation a negative factor if it is in response to domestic violence.

Determining the best interest of the child in a relocation case will include consideration of factors such as:

  • how the relocation might improve the child’s life;
  • the custodial parent’s motives in moving;
  • the likelihood that the custodial parent will comply with visitation orders after the move;
  • the integrity of the non-custodial parent in fighting the move;  and
  • the likelihood that a realistic visitation schedule can preserve and foster the child’s relationship with the non-custodial parent.

If the parents have joint physical custody and one parent relocates to a distance that makes the original custody arrangement impossible, then at least one North Carolina court has held that such a move establishes a substantial change of circumstances meriting a change in custody and/or visitation.

As discussed here, divorced parents can enter into agreements about child custody without making them part of a court order.  The agreements are enforced like any other contracts.  However, these agreements cannot prevent courts from modifying such agreements.

If there is only an agreement between the parents (and not a court order), then the standard for modification is simply the best interest of the child.

However, if an agreement has become part of a court order, then the parent seeking the change must show a substantial change of circumstances affecting the child, and the court must then decide whether a change is custody or visitation in response to those changed circumstances is in the best interest of the child.


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