Crenshaw v. Williams, filed N.C. Court of Appeals, April 19, 2011 (No. 10-720). Mother appealed from a trial court order modifying the parties’ Michigan child custody and child support order registered in North Carolina. On review, the Court of Appeals held that the North Carolina court lacked subject matter jurisdiction under UIFSA to modify the child support provisions of the order. At the time of registration, Father lived in North Carolina with the minor child and Mother lived in Georgia. The Court concluded that, because Mother was the obligor, UIFSA required Father to register the order in Georgia, the state in which Mother resided. Because the order was registered in North Carolina rather than Georgia, North Carolina lacked the authority to modify Mother’s child support obligation.
On appeal, Mother also made numerous arguments regarding the court’s custody order awarding Father primary custody of the children. The court noted that registration in North Carolina was proper under Section 50A-203(2) and the court had subject matter jurisdiction to modify the Michigan custody order because North Carolina was the children’s home state. The court dismissed Mother’s claim that the court’s decision regarding support “tainted its concurrent decision regarding custody,” noting that the court’s findings demonstrated that it considered numerous factors beyond the parties’ relative incomes and standards of living in determining whether there had been a substantial change.
The court held that there were ample findings evidencing a material change in circumstances affecting the welfare of the children since the time the Michigan order was entered and that awarding primary custody to Father was in the best interest of the children. These findings including the following: Father and his wife were actively involved in the children’s school and sports teams, Father’s wife assisted in parenting and caretaking, Mother had a pattern of missing or being late for her visitation with the children, Mother was not actively involved in the children’s school or other activities, Mother did not discipline the children, the children returned from visits exhausted, and Mother did not support the children getting medical care.
Hibshman v. Hibshman, filed N.C. Court of Appeals, May 17, 2011 (No. 10-435). Mother appealed from a trial court order awarding primary custody to Father, arguing that the trial court erred by modifying custody without first finding a substantial change in circumstances. During the parties’ first custody hearing, the parties stipulated and the trial court concluded in its order that Mother would be the primary custodian of the children for so long as she maintained her residence in a particular school district. In the decretal portion of the order, the trial court stated that should Mother move outside of the district, the court could receive additional evidence regarding the custodial arrangement in the best interest of the children without first overcoming the evidentiary burden of proving a substantial change.
Father later filed a motion for a change of custody when Mother relocated to South Carolina. The trial court entered an order changing the primary custody of the children to Father without finding a substantial change.
On review, the court held that despite the parties’ stipulation, there are no exceptions in North Carolina law to the requirement that a change in circumstance be shown before custody may be modified. Section 50-13.7 requires a finding of a change of circumstances in order make a change in custody. The court noted that the purpose of the statute is “to lend such stability as would end the vicious litigation so often accompanying such consents” regarding custody. Moreover, Mother did not have the ability to “waive” the substantial change requirement set forth in Section 50-13.7 as it is a statutorily mandated limitation on the court’s authority and not a personal right subject to waiver by an individual.