Material Change in Circumstances


#1

We need help please!

Some background: My husband’s and his ex wife have joint legal custody with her having primary physical custody and my husband having every other weekend visitation. My stepdaughter is 7 and a consent order that they agreed to was recently signed by a judge and filed back in April 2018 in Durham County. Several months after the consent order was signed, his ex wife secretly moved an hour away and had been living there with their daughter for almost a month before he found out. When he confronted her about whether she had moved, she denied it at first and then admitted to it after some time had passed. After some searching, we discovered that she was closing on her new home at the time of the signing of the consent order back in April, all the while agreeing to certain terms that would keep her bound to Durham.

In the consent order, both parties agreed that it was in the child’s best interest to keep her in a specific school in Durham through the end of her second grade school year due to a recent ADHD diagnoses. However, the mother relocated to another city an hour away just before their daughter entered the second grade in August. Upon learning of the move and the mom’s intent to enroll their daughter in another school in another city, without my husband’s input or consent, my husband filed a motion for contempt, even though school had not yet started and the ex had not yet technically “violated” the order. School has now began and despite quite a bit of contention, the mom is taking their daughter to the school in Durham, as the consent order states. But the mother has now motioned to modify the consent order citing a material change in circumstances. The ex wife did not move for a job, or for our daughter’s best interest, or for any other reason except to fulfill her personal desire to live on a lake. Nearly all of her personal business remains in Durham on a daily basis, including her job, her family, all of our daughter’s doctors, her therapist, her school and my husband.

My stepdaughter nearly failed the first grade before receiving the ADHD diagnoses and getting educational intervention at her current school. She is also in counseling for a number of issues that I believe stem from the divorce and hostility between the parents. My husband desperately wants stability for his daughter, and feels that disrupting her school year will negatively affect her educational and social progress after she has just begun to make some strides. He wants her to finish the second grade school year where she is without further disruption.

My question is this: Has there been enough change in material circumstance to warrant the modification that ex is seeking?


#2

Assuming the custody order is a permanent custody order (not a temporary custody order), it is not likely that there will be enough to show a substantial change in circumstances affecting the wellbeing of the minor child.

The order was entered by consent, it has only been in effect for 6 months, the minor child is familiar with and presumably comfortable with Durham (school, doctors, therapist, extended family all located in Durham), and if the mother was closing on a new home at the time of signing the consent order, then she was aware that she would be relocating. NC case law states that relocation by itself is not enough to warrant a substantial change in circumstances affecting the wellbeing of the minor child. And it is this substantial change in circumstances standard that must be shown, along with the best interest of the minor child, for a court order to be modified.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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