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Is Your Custody Order Out of Date?

When it comes to custody cases, most parents usually either sign a separation agreement, sign a consent order (order by agreement) or they go to court and have an order entered by the court after the trial. The drama dies down and hopefully life goes back to normal, at least as normal as things can get after a dispute of this nature. Life changes. As the years pass, children grow, parents get married or remarried and maybe a few more kids are added along the way. Especially when parents are young, they become more mature. Once the threat of on-going court battle has subsided, parents may stabilize as co-parents and begin to trust each other. The best parents simply do what needs to be done. They might not rely on the custody order after a couple of years because they develop a co-parenting routine.

As Time Goes By . . .

Assume you and the other parent reach an agreement about your 4-year-old son. It calls for him to be with you every other weekend from Friday at 6:00 p.m. until Sunday night at 6:00 p.m., every other Wednesday night, and two weeks during the summer. For a number of reasons, when your son is 6 and starts school, both of you agree it would be in his best interest to live with you and reverse the visitation schedule. This works great for years.

What’s The Problem?

The problem is that the old custody order remains in effect as is unless and until it is changed, or it “expires” when a child reaches the age of 18. Now assume that your son is 11, and the other parent suddenly tells you he or she will now be going back to the court-ordered visitation schedule, and your son will be staying there full-time until further notice. You rush home, dig up the custody order, blow the dust off and see that it only gives you visitation every other weekend and Wednesday nights. From that messy situation, it is obvious you have a real problem. If the order had been updated, this problem could’ve been avoided. When you no longer agree with the other parent, you risk being held in contempt of court if you fail to abide by the custody order. Ultimately, a judge has the ability to enforce the order by whatever means is necessary, including incarceration. If you suddenly need to rely on your custody order in a situation like the one described above, you aren’t protected. This often rears its ugly head when one of the parents has a new romantic relationship, remarries and/or has a new child.

How Do You Update a Custody Order?

In North Carolina, when both parents agree that they need a revised custody order (i.e., an “updated” order), the process is fairly straight-forward. After an attorney prepares a motion and consent order, or two lawyers negotiate about what is included in it, the parties sign it and voila, a new order is entered by the court. Sometimes, the judge requires both parents to appear briefly to tell him or her that consent is given to enter the new agreement as a court order.

In our example above, not only would an updated order have clarified the living arrangement, but it might’ve also addressed new parenting concerns for an 11-year-old child. Parents are sometimes inclined to spell out the responsibilities of the child’s extracurricular activities and sports. They might agree on a host of things, such as enrolling a child in camps or similar activities only with the consent of the other.  Or the agreement might specify that neither parent will schedule trips or activities during the other parent’s visitation time. When the parents don’t agree on the need for a new custody order, the parent who seeks to update the order must file a motion for the judge to decide whether to change the custody order.




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