You cannot ask a trial court to modify its existing orders ‘just because.’ That goes for any order, including child custody orders. Seems like an obvious point, but the Court of Appeals last month had to provide a refresher. In Davis v. Davis, the Court vacated portions of a child custody order that modified an existing order under the guise of “clarification.”
Divorce practitioners and trial courts get so comfortable with the practice of changing child custody orders to fit changes in the child’s circumstances that they sometimes forget the core—the trial court has to actually find those substantial changes in circumstance first. The opinion in Davis is a reminder.
Litigant Robin Davis persuaded the trial court to “clarify” the child custody order by including a brand new requirement that her ex-husband Charles attend anger management classes. She also persuaded the trial court to change Mr. Davis’s visitation schedule from alternative weekends to “weekend daytime visits for several weeks.” Of course, the Chapter 50 court was free to modify its custody orders—but only so long as there were some substantial changes in the child’s circumstances. In contrast, the Davis court found no such changes, but modified the order all the same. Writing for the Court, Judge Stroud stressed that “a finding of substantial change in circumstances affecting the interests of the child is not just a ‘buzz word’—it is a legal requirement for modification of custody.” Not could the trial court avoid this requirement by styling the obvious changes in its order as “clarifications,” the Court of Appeals insisted. The North Carolina Court of Appeals held no punches, writing:
Plaintiff simply misstates the law when she claims trial courts may ‘clarify’ orders without finding a substantial change in circumstances . . . . The controlling authority is to the contrary: to justify any changes to an existing custody order, beyond those fixing mere clerical errors, see N.C. Gen. Stat. § 1A-1, Rule 60, North Carolina courts have required a showing of substantial change in circumstances . . . .