You entered into a child custody Order when you first separated or divorced, and at the time, things worked well. However, things have changed and you now want to change an existing Court Order. How is that done?
To change an existing child custody Order, you need to file a “Motion to Modify Custody”. In North Carolina, there is a two part test to determine if the Court would modify an existing Custody Order:
1. Has there been a substantial change in circumstances since the original Order was entered?
Courts look at factors such as:
- Has one parent has lost a job and/or been forced to move away?
- Does one parent continually fail to follow the existing order?
- Has one parent developed significant health problems which impact their ability to take care of the child or children?
- Has one parent been convicted of a crime or subject the minor child or children to those involved in criminal activities?
- Have there been any instances of child abuse?
2. Would modifying the existing custody order be in the best interest of the child?
Courts determine the best interest of a child by looking at a variety of factors including, whether domestic violence has occurred, the child’s current living arrangement, each parent’s ability to provide for the child, and whether each parent creates a stable home environment.
The Two Legal Requirements are Satisfied, Now What?
After looking at all the factors above and determining that there has been a substantial change in circumstances and changing the existing Order would be in the best interest of your child, you need to file your Motion to Modify Custody.
Step 1: Fill out the Forms
You must complete the following forms, which can be found online or at the Courthouse:
- Motion for Modification of Custody – this needs to be signed in the presence of a Notary Public
- Domestic Civil Action Cover Sheet AOC-CV-750
- Notice of Motion to Modify Custody
It is very important to place your existing case number from the previously entered Order in the upper right hand corner before bringing it to the Clerk of Superior Court Office.
Step 2: File the documents
Take the original documents and 2 copies of your Motion to the Courthouse where the original action was filed. Give the forms to the Clerk in the civil division and tell him or her that you wish to file a motion to modify a custody order. Remember, there are fees associated with filing the Motion to Modify, so you may wish to confirm the amounts, as they frequently change.
Step 3: Further Information
You will be mailed notice of any and all dates of your case. Make sure that your correct mailing address is in the file, as well as the correct address for the other party. Please note that your claim may be resolved in Mediation. If a signed parenting agreement is reached in Mediation, you will not be given a hearing date.
Step 4: Service of Process
According to North Carolina law, you have to let the other party know that you are filing a Motion to Modify Custody. This is known as “Service of Process” and can be completed in number of ways, including sending notice by 1st class US mail. It is important that this is done correctly since if the Court finds the other party was not served properly, they will likely not hear your Motion.
Step 5: Go to the Hearing
Be sure to attend all scheduled court events on time and dress as if you were going to a job interview. Take a copy of the Motion, and also the post office cards showing that the Motion was sent certified via certified mail. Leave home early enough so you arrive at the Courthouse at least half an hour before the hearing is scheduled to begin. If the courtroom number is not listed on your Motion or Notice of Hearing, go to the civil clerk’s office and ask which courtroom to go to.
If you have questions, or would like to sit down and talk to an attorney about a potential child custody modification, please feel free to call our Mcilveen Family Law Firm at (704) 865-9011.
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