Good Idea to wait on modification?

North Carolina Divorce Law Divorce and Separation Answers
#1

  1. Generally you will not get in trouble for modifications the two of you agree to make to a custodial schedule. If one of you filed a motion to hold the other in contempt it would be easy to prove you did not willfully violate a court order when the other party agreed to the change as well. I would suggest keeping a record of these changes in email in case there ever is an issue.

  2. If you agree to reduce the change to writing in a new order you can do it by consent and submit it to the judge for his or her signature. You do not have to return to court and have a hearing to make the change.

  3. You may want to wait until the new custodial schedule has been in place for a few months before filing a motion to modify.

  4. If you modify child support and you agree then you do not have to use the guidelines, if you go to court, the judge will determine whether or not there was a substantial change in circumstances from the entry of the last order, if there was, the judge will modify child support based on the current circumstances and NC guidelines.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

#2

I appreciate this information. I have another question on this same issue.

My stepson has made this decision but has not been consistent with his visitations. For example: He set up the schedule of going to his mother’s every Wednesday, on every other Wednesday night he will stay overnight there. Then every other weekend he will stay Friday & Saturday night.
Since he has made this decision, he’s stayed the next Tuesday night, Wed & Thurs in a row the next week, we had one week with the schedule stated, but that was our week with them anyway. Then stayed with her Sunday night instead of having his father pick him up as originally planned. It’s really only been a little over a month and since their order is equal time, there’s only been 2 of her weeks that have been “tested” with this new schedule. So far, they haven’t been the schedule he laid out. His mother has called Tuesday both weeks asking why he was not coming over since it was her week.

I have suggested and my husband has told him he needs to get on a schedule and stick to it.
Not only is this making everyone else’s schedule difficult to keep up with but I believe that he’s being a “fair weather friend”. He has not waivered in his stating that he wants to live with us, but he’s not being consistent.
I know there is no right or wrong in this situation because there’s too many emotions involved but to me it looks as though he’s staying wherever he wants when he wants. I believe that, without meaning to, this is being held over his mother’s head also. She can’t discipline or punish him for anything because he’s said he’s “living with dad now”. She knows that as long as she gives him stuff and he’s having fun he won’t want to leave and since it’s still legally her night/week to have them there’s nothing we can do…I’ve suggested to my husband that maybe he’s not really ready to stick to this decision.

Helena, you suggested waiting for the custodial schedule to be in place for a few months before filing for modification. But without the agreement/order being modified we cannot enforce any schedule…seems like we’re going in circles. Any suggestions?

#3

Have you tried sitting down and talking to his mother about this to see if you can’t work something out? If the current schedule is not working and it is having a negative effect on your son, it may time to file a motion to modify custody and ask the court to put something in place.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

#4

If I’m not mistaken, so long as you all agree on the changes taking place, you can all sit down, write down the modifications yourself, and file a form I found on www.nccourts.org that modifies it yourselves, just to let the courts know what it is you’ve changed and what can be enforced now. What I’m afraid of here without modifying it is, if something happens, and you need it enforced, it can’t/won’t be because of what the document already says not portraying what is really happening.

#5

Mom will never agree to this change legally. She’s going along with it now because nothing has been said about changing the custody or child support. As soon as child support is mentioned there will be an arguement. She’s already quit giving him lunch money because he doesn’t “live” there anymore. He was very upset about that.
My husband explained to both the boys what child support was because as soon as she signed the agreement she started griping to them that he wasn’t paying her enough. Telling them to ask their father for stuff, because he was the one with all the money. She would tell them she didn’t have money for anything. She would refuse to let them wear any clothes or shoes that she bought them to our house. They learned very quickly that if they needed money for book fairs or field trips that they were to ask their father. They understand that it’s easier to ask Dad than to get fussed at by mom.
She makes about 35k and my husband makes about 55k. They have equal time with the children. He pays her $250 per child to the state a month, plus pays her for insurance and half the childcare in the summer, though that part wasn’t in the order. She was supposed to buy them clothes twice a year and be reimbursed for half the cost, but that didn’t work out so well the first time so they agreed we would each buy clothes for our homes. He covers all the co-pays, gets the medications filled and takes them to appointments.

She works two night out of the week that she has the boys and subsequently is off those two nights the next week during our custodial time. They stay with us every Thursday night and with their grandmother the Wednesday on her week and on our week they are with their mother on Wednesday night.
Thier mother set this up for two reasons. One, she mentioned that it wouldn’t be right for us to keep them two of her nights because that is what the courts would look at…this was a year ago before any of this situation came up…and two, she wanted one night off to be able to go out.

What I would like to see happen is for the schedule that my stepson stated at the beginning to be put in place but not have to drag it back to court yet, without making sure it’s permanent.
The problem is that since we have not taken it back to court, we can not enforce a different schedule. So when mom comes by the sitters or calls and makes him feel guilty we can not do anything about it because they still legally share custody. She knows that this was his decision and that we had nothing to do with it.

It sounds like the only way that we will be able to enforce it is just to go back to court…
Would they have to go through mediation again if she doesn’t agree to the modification?

#6

If you file a motion to modify custody you would need to go through the mediation process again before the court would hear a modification of custody.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

#7

Brief history: Husband and ex share joint legal and physical custody with equal time. Specific days are named when children are to be with which parent. Child support specified $x amount per child paid to the mother. This was their agreement changed to court order.

Recently, my oldest stepson has decided to live with us full time. He spoke to his mother about this and she is not fighting him. We did not influence this decision nor are we enforcing it. It’s his choice. He’s 12 (13 in May)but he is much older than his years and gave his doctor, teachers, sitter, us and his mother valid reasons for wanting this change. Now we are wondering how long to wait before we modify custody and child support. We were planning to give it a couple of months to make certain that he’s sure of his decision.

The schedule with each parent has been changed numerous times but always due to his mother’s wishes, work schedule, party nights…other issues. It was kept with equal time but it went from switching every other day to week to week, then switching a couple days in the middle of the week…it’s been confusing. Now the oldest is only going to his mother’s on Friday & Saturday night one weekend and then Wednesday night that next week (she works 3rd shift is why it’s not every Wed.)
In fact, just about everything in the agreement has changed except for the amount paid to Raleigh and that it’s still joint legal and physical custody with equal time.

I have quite a few questions though:
1)Given that this is a court order, can we get into trouble for not enforcing the schedule that was set in the order? Or would it be on her since she is the one that requested the changes so freqently? Basically, if she attempts to get him into trouble for not following this, can we turn this around on her?

2)If his mother agrees to the modification of child support and custody, would we have to all go back to court or could the judge just sign a modified order?

3)Should we wait to modify child custody and child support?

4)If we modify child support will it have to be through the calculator since the calculator was not used to begin with? Or can we just use the figure in the original order for the one child? I do not think that he is planning to ask for child support from her…

5)What steps do we need to take to get this process started?

Thanks for the support this site provides. It’s a wonderful asset.