Three North Carolina Appeals Court cases appear to have made the first hurdle to a custody modification, proving a substantial change in circumstances, easier to overcome. All three cases allow past acts to be taken into consideration when finding a substantial change in circumstances. Today we will be exploring each case and giving an overview of the impact all three collectively have on custody modifications.
Spoon involved a mother who relocated prior to the entry of the custody order for which the father was seeking modification. Even though the actions of the mother in moving was prior to the entry of the order, the Court of Appeals affirmed the trial court’s ruling that the children now suffered a greater impact, negatively, than when the mother moved in the first place.
To put in other words, the children’s reaction to mother’s past behavior of relocating (which occurred prior to the entry of the order and not after) was the substantial change in circumstances that allowed the existing order to be modified by the trial court. The Spoon decision opened the door for the Appeals Court in Laprade v. Barry to make their decision.
The parties in Laprade had a problem communicating with each other prior to the entry of the 2012 custody order (shocked at the issues with communication, by the way). The 2012 custody order was in place when mother filed a motion to modify custody. The father’s position was that the problem with communication between the parties has been an on going problem and was not a change, especially for a change in circumstances.
The Court of Appeals disagreed with the father and ruled that the older the child got, the more affected by the parents’ communication issues he/she became. Because of this, the court surmised, there was a substantial change in circumstances. Basically, the child’s change in behavior, even resulting from the past behavior of the parties, is enough to show a substantial change in circumstances to allow the trial court to hear the modification of custody action.
The most recent case regarding what is a substantial change in circumstances needed for a modification of child custody is Shell v. Shell which was ruled upon on August 21, 2018. Again the facts of this case centered around circumstances that took place prior to the entry of the order for which the mother was seeking a modification.
In this case, the mother was four months sober when the order was entered and there was a finding of fact by the court that the father had limited intellectual abilities and needed heavy assistance from his parents in order to care for the father’s children. In addition, the parties (pattern here) could not communicate without arguing and could not cooperate with each other in order to properly parent the children.
The ruling by the Court of Appeals, in line with Laprade and Spoon above, stated that the older the children got the more care they needed. So the fact that the lack of communication and father’s limited intellectual abilities predated the entry of the custody order was immaterial to the actual substantial change in circumstances, which was the affect these had on the children at their current age. The court also determined that the mother’s continued sobriety (4 years between entry of order and motion to modify) was a change which the trial court could properly consider.
If you have questions regarding initial custody proceedings, please check out my blog post on the subject here.
*Nothing in this blog post is to be taken as establishing an attorney-client relationship. This blog post is not to be construed as providing legal advice.