Changing custody order


#1

Either party can, in theory, go back to court any time they want for any reason they want. If the reason is frivolous or totally without merit, the court may impose sanctions on the offending party. In extreme cases, a judge might restrict a party’s access to the court by requiring a lawyer’s concurrence before additional motions are filed.

Regarding custody, the standard for modification of an existing order is a substantial change of circumstance that affects the welfare of the child. The burden is on the party seeking modification of the existing order to show that such a change has occurred. When such a showing has been made, the court then uses the “best interest of the child” standard when determining whether a change in custody is warranted. In your case, the only valid reason for husband’s ex to go back to court is if a big change has occurred that affects the children and there’s a reasonable possibility this change might convince a judge to change the existing order.

Children in NC do not get to decide who they live with. When a child becomes of “suitable age” - and in NC there is no statutory or common law definition of this age - a judge might choose to take the child’s preferences into account. The judge is not required to do so, however. Even if judge hears the child, the judge is perfectly free to ignore the child’s wishes. On the other hand, there’s really not too much the court can rationally do if a child close to the age of majority chooses to live with one parent or the other.


#2

I appreciate your response WakeDad. We would have been able to get full custody if it had gone to court but after asking the children, he decided to agree to joint custody. There have been no big changes on either side. I would think it would have to be changes such as the care provided by the parent, proven abuse or neglect to change a court order. We have the children an equal amount of time during a two week period, and they are well taken care of in our home.
I have another question if an attorney will respond. Since they share court ordered custody, 50/50 with equal time,is it considered interference for them to call the children when they are at the other parents home or to visit with them when it is the other parents scheduled day? Would it be feasable to request that these phone calls stop in cases where the other parent will be seeing the children the next day? These phone calls and visits are often times ending with my husband’s ex screaming and cursing him for things the children are or are not doing while they are at our house. The big decisions they have no trouble discussing and most of the time they agree, but it’s the petty things that are making the our time with the children miserable. To me it just seems unecessary, since she was with them that morning, often goes to visit them at the sitters in the afternoon and the next day is her day with them. During the entire separation and divorce, she would go a week without seeing or talking to her children. Since the divorce was finalized, she calls every day that the children are with us and some days even when they are with her just to complain.


#3

Can I get any response to the question in my previous post about visiting or calling on the children other parents scheduled day?


#4

Dear stepmother:

Greetings. Yes, if they have an order in place then the ex would have to prove a substantial change in circumstances. I don’t know about the entire situation, so I cannot answer the other question.

No, there is not such an age. Children are under the jurisdiction of the courts until age 18, unless emancipated sooner. Thank you.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#5

Am I correct that my husband’s ex can not just decide to take him back to court for custody? They have joint custody court order 50/50 and no changes in lifestyle, income or ability to care. The order is only about 6 months old, but we believe that she is trying to get a case together to get full custody. Would there be any valid reason for her to be able to request change of custody at this point?
I know that at a certain age the children, age 11 & 8 now, can decide that they would like to stay with one parent and that would be a reason to file for a change, but what is that age?