Child Custody Orders may be modified based on a substantial change in circumstances which warrant a modification of the existing child custody order. The substantial change of circumstances must affect the welfare of the minor child. To many, this standard may seem vague and confusing. A recent Court of Appeals case Patten v. Werner discusses the issue of modifying custody. Father filed a motion to modify a current custody order asking the Court to grant him primary physical custody of the parties’ minor child.
In this case, Father and Mother were divorced. After the divorce, an order was entered granting Mother primary physical custody of the child with Father having liberal visitation. Mother then remarried and her new spouse was the center of Father’s motion to modify custody. Mother’s new husband had been arrested for driving while intoxicated and his license had been revoked; however, Mother continued to allow her new husband to drive with the child. The child had allegedly witnessed domestic violence which led to the new husband being charged with assault. Additionally, the child’s absences and tardy marks at school had increased.
The key issue in cases of this nature is whether the facts and circumstances affect the welfare and well-being of the minor child. The trial court found that due to Mother and new husband’s behavior and the home environment they had created, the child’s welfare and well-being had, in fact, been affected.
The trial court modified custody and awarded primary custody to Father. The trial court considered the changes described above and how they affected the child and determined it was in the child’s best interest to modify custody.
The Court of Appeals affirmed the trial court’s decision to modify custody and award Father primary physical custody of the minor child.
The legal precedent established by cases such as Patten v. Werner is always subject to change due to action by the North Carolina General Assembly, decisions by a higher court, or legislative action taken by the Congress of the United States of America. Therefore, it is always imperative to seek the advice of legal counsel that is apprised and familiar with the law as it relates to your case.
