Consider the situation where a grandparent or other nonparent files a custody action against a parent. The complaint includes allegations regarding the relationship between the nonparent and the child and includes allegations that the parent has waived their constitutional right to exclusive care, custody and control of the child. In response, the parent files an answer and a motion to dismiss the complaint pursuant to Rule 12(b), arguing that the nonparent does not have standing to seek custody of the child. To determine whether the complaint should be dismissed for plaintiff’s lack of standing, does the court need to conduct an evidentiary hearing to determine whether the parent has waived their constitutional right to custody or is the standing determination made on a review of the complaint alone?Continue Reading
Modification of custody: establishing impact of change on welfare of child
G.S. 50-13.7(a) provides that “… an order … for the custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.” However, case law supplements this statute to provide that an order may be modified only upon a showing of a substantial change in circumstances since the entry of the original order, Savani v. Savani, 102 NC App 496 (2001), and the substantial change must affect the welfare of the minor child. Pulliam v. Smith, 348 NC 616 (1998); Shipman v. Shipman, 357 NC 471 (2003).Continue Reading
NC Court of Appeals rules application of grandparent visitation statutes unconstitutional
In an opinion issued on March 16, 2021, the North Carolina Court of Appeals held that a trial court’s award of visitation to paternal grandparents pursuant to North Carolina’s grandparent visitation statutes violated mother’s constitutional right to control with whom her children associate.
Mother and father settled custody by a consent custody order when they divorced. When father became ill a few years later, he began living with his parents and he filed a motion to modify custody. His parents also filed a motion to intervene and filed a claim for visitation pursuant to the grandparent visitation statutes, GS 50-13.2(b1) and 50-13.5(j). The trial court granted the grandparents’ motion to intervene, but father died before the court heard his motion to modify or grandparents’ request for visitation. Following his death, the trial court entered a permanent order granting mother primary physical and legal custody and awarding grandparents extensive visitation rights. Mother appealed.Continue Reading
Child Custody: We Can’t “Change Venue” to Another State; Determining NC is an inconvenient forum
**This is a post from October 28, 2016 that I decided to post again, with a couple of appellate case updates, due to the frequency with which I receive questions about this procedure.
I received a call once from a clerk of court asking what she should do with a voluminous court file received in the mail from a court in another state. It was a large box containing all of the pleadings, motions, reports and other filings for a custody case that had been litigated in another state for several years, accompanied by a court order signed by a judge in that other state “transferring venue” of the case to North Carolina, citing as authority that state’s version of the Uniform Child Custody and Jurisdiction Act (the “UCCJEA”).Continue Reading
CUSTODY AND VISITATION RECOMMENDATIONS DURING COVID-19
From the North Carolina Family Court Advisory Commission:
To provide guidance to families with existing Chapter 50 custody and/or visitation orders during the COVID-19 pandemic, commonly referred to as the novel coronavirus, the Family Court Advisory Commission issues the following recommendations, which were approved by Chief Justice Cheri Beasley on April 13, 2020. The goal of these recommendations is to encourage the parties to follow their parenting plan and/or custody order as closely as possible to ensure a level of consistency and stability that is in the best interest of the child(ren). Families should work together to ensure the best interest of the child(ren) while also following the advice of their healthcare provider(s).Continue Reading
Default and Summary Judgment in ‘Divorce’ Cases
In a recent opinion, the court of appeals held that a trial court has no authority to annul a marriage by summary judgment. Hill v. Durette, (N.C. App, March 19, 2019). This case reminds us that while the Rules of Civil Procedure apply to domestic relations cases generally, there are significant limitations on the use of rules that relieve the court of the obligation to make findings of fact based on evidence presented to the court before entering certain types of domestic orders.
Grandparent visitation: termination of parent’s rights does not terminate grandparent’s court ordered visitation
The court of appeals recently reversed a trial court decision that a judgment terminating a mother’s parental rights voided a court order entered five years earlier granting her mother visitation with her grandchild. In Adams v. Langdon, (NC App March 19, 2019), the court of appeals held that the termination of the mother’s rights had no impact on the visitation rights the trial court ordered for grandmother before mother’s rights were terminated.
What the law says about ex parte custody orders
While there are no doubt numerous ex parte custody orders entered by North Carolina courts daily throughout the state, there is very little appellate guidance regarding the circumstances under which such orders are appropriate and regarding the procedure that should be followed after such an order has been entered. Because these orders are interlocutory and not subject to immediate appeal, we probably never will have much case law to direct us.
Custody Modification: the effects of the same circumstances can be the changed circumstances
Child custody orders can be modified upon a showing that there has been a substantial change in circumstances affecting the welfare of the child(ren) since the entry of the last custody order and upon a showing that modification is in the best interest of the child(ren). GS 50-13.7; Shipman v. Shipman, 357 NC 471 (2003). Three relatively recent opinions from the court of appeals clarify that the required substantial change does not necessarily need to be the development or occurrence of a new circumstance; the required substantial change can be a change in the way an existing circumstance impacts the welfare of the child(ren).
Intervention in Custody and Child Support Cases
It is not uncommon for third parties to assert rights or claims against parents litigating child custody and child support. For example, grandparents frequently want the court to grant them visitation rights as part of a custody order resolving a dispute between the child’s mother and father. Similarly, the IV-D child support enforcement agency or a non-parent who has been caring for a child often need to assert rights or claims in child support cases pending between the child’s parents.
Before these people can assert claims or rights in an existing case, they must become parties to the case through the process of intervention.