Modification of Existing Order


#1

You can use the change of circumstances as the reason to file for modifying custody. I suggest that you would need to probably discuss with her about a possible trial change prior to going back to court.
We are sort of in the same boat with my oldest stepson who is soon to be 13 but the advantage to this is that their mother does live within 30 min drive and that they have had shared custody with equal time since their separation.

If it’s unlikely that she would agree to this you could probably file for modification for joint physical custody. There are a lot more courts ruling in favor of shared custody than in years passed, and to be honest, the courts are more likely to rule for joint custody than a complete change in primary custody. Don’t discredit the neglect. If there is documentation in the past keep up with it. The courts can look at past parenting practices to see how a parent will likely behave in the future. If they were being neglected, it’s rare that that just stops. With that many people and children involved, it’s unlikely that they are receiving the attention and devotion that they could get from you.
If you do file, I would do it when the children are with you. The first day that you have them, ask them if they would want this change, and contact an attorney. Document everything.
If you have an agreement spelling out your visitations then do NOT change it. It’s possible that there is something planned for the month of July but if your ex is anything like my husband’s it’s more likely that there is a desire to split up your visitation schedule so that she has more influence over the children. This way you don’t have them for a solid period of time and there is less chance for them to get used to a schedule with you…


#2

Thank you for the advice! You seem to have a pretty good grasp on the situation. I think that she may be trying to break up my visitation with them due to her fears before of my influence with them. Everytime they are with me they don’t want to go back. But then when they do go back they don’t want a change in the situation. I know their mother is influencing them pretty hard. They can’t even talk to me straight on the phone.

I was wondering also if I should take them to a family counselor when I get them? I thought this may be a good idea as well as the counselor will have to offically document everything.

The past neglect wasn’t that major. My lawyer at the time advised me that while I did have some neglect, there wasn’t enough to warrant a judge removing them from Ohio back to North Carolina.


#3

If your children are generally doing well it can be hard to modify custody, but not impossible. If the living environment of your children is substantially different than it was when you entered into your custody order it can be a basis for modifying your custody schedule.

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

Where can I find a sample form for filing a modification of consent order based upon significant change in circumstance as well as the directions for doing so, to include filing and serving? I don’t have the extra capital for a $3000 laywer at this time.


#5

anyone have any input?


#6

There is no form for a motion to modify custody. If you are having trouble drafting one and you live in Wake county, there is a self serve legal clinic that may be able to assist you. Their offices are on the 11th floor. If you do not live in Wake county, you may want to contact the county where you live and see if they have a similar program.

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

So if I don’t have any substantial neglect, abuse and the house isn’t being used as a meth lab, then it doesn’t matter how unhappy the children are and the fact that they live in a 4 bedroom home with 13 people and my 12 year old son must share a room with his 9 year old sister has no weight at all in the legal system?

I am frustrated. Is there any other way that I may have a case to modify the existing order so that the children stay with me during the school year??? My lawyer won’t take the case because he doesn’t have a high enough confidence that it’s winnable. Any inputs or suggestions???

Should I take my children to a counselor when they get here? Should I record them saying they want to be here? I’m at a loss but don’t want to give up and let my kids down.


#8

Find another attorney that will take the case. You can file for modification of custody on the change of circumstances for any reason. It does not have to be neglect or danger. Talk to them first and see what they are saying. Find out what you can do about taking your children to talk to someone when they come out. Hire a PI to find out information on your ex and the arrangements…
Let your children know what will have to happen if they truly want to live with you primarily. Let them know that you will have to go to court and this will not be an easy process. They need to tell their mother and that they can not take this back half way through. They will have to stick to this and not change their mind. Get a recorder for your phone so that you can record conversations between you and her and between you and the children.
If your children are old enough to explain why they would prefer to live with you then that may be used also. Basically, at the age your son is, it is going to go more on their choice. Not really sure with your daughter being 9…


#9

It is not necessary to prove neglect or abuse to change custody, children can be affected by a negative environment, even if it does not amount to abuse. When determining whether a change in custody is warranted, the court will look not only at the changes that have been made, but also the way it has impacted them. If their environment is not healthy, chances are they will show it in some way, school performance, changed behavior etc.

That does not mean that the court will not consider the ability you have to provide the children with a better environment, but they will weigh all these factors when making a decision.

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.


#10

After going through this myself and doing quite a bit of research on forms, I have found that there are forms out there for modification of custody. NCCOURTS.COM is an excellent resource. Here is a link that may be what you are looking for.
nccourts.org/county/union/do … tation.pdf

Its not the exact same one that I was served with, but its close. If you go under the nccourts.com website, click your county and go to “local rules” or “forms”, (each county has it set up a little differently. If your county does NOT list the form you are looking for, go to a different county. You just modify it (correct county name), to fit your circumstance.

I was served with modification for custody (I have primary now), because the kids’ father work sched. has changed. It really depends on the judge, some judges believe more in joint custody while others are more conservative. You need to ask around about the judges in your area. I would think that the living circumstance and your older child wanting to live with you would be reason enough to file.
Good luck.


#11

My ex-wife and I have joint legal custody and she has primary placement of our two children obtained through a consent order about 3 years ago. She used to live in NC, then moved with the children to Ohio in with her parents and lived in a duplex with 8 people total. Then she moved to Missouri and now lives with her husband’s family with a total of 12 people living in a 4 bedroom house and she has another on the way in a couple months. She now has two children with her new husband and our two. She receives child support (1000/mo) and her husband works but they don’t have their own place, car, cell phones, any of the basics. She is constantly trying to modify my visitation with the children and this year she want’s to take the entire month of July with me having june and august. We have it in our agreement that whomever is receiving is responsible for transportation. Anyways…the children expressed to me last year (they are 12 and 9) that they want to stay with me and visit their mom in the summer. But as soon as they get home they change their minds. I KNOW that there’s a lot of parental alienation going on. I’m pretty much looking for advice on if and when I should file for custody of the children based upon a change in circumstances. I live in a 4 bedroom 2 bath home on 3 acres. The children will have their own bedroom, etc. But, the children are getting good grades (as always) and are generally well so I can’t get her on neglect any longer.