Changes in Custody

           Shirley v. Shirley, 536 S.E.2d 427 (Ct. App. 2000), articulates, with specificity, the general rules governing change of custody cases:

           In all child custody controversies, the controlling considerations are the child’s welfare and best interests. In reaching a determination as to custody, the Family Court should consider how the custody decision will impact all areas of the child’s life, including physical, psychological, spiritual, educational, familial, emotional, and recreational aspects. Additionally, the Court must assess each party’s character, fitness, and attitude as they impact the child. There exist no hard and fast rules for determining when to change custody and the totality of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed.

           In order for a court to grant a change of custody based on changed circumstances, the party seeking the change must meet the burden of showing changed circumstances occurring subsequent to entry of the order in question. A change in circumstances justifying a change in the custody of a child simply means that sufficient facts have been shown to warrant the conclusion that the best interest of the child will be served by the change. The change of circumstances relied on for a change of custody must be such as would substantially affect the interest and the welfare of the child, not merely the parties, their wishes or convenience. The circumstances warranting a change in custody must occur after the date of the original custody order. Custody decisions are matters left largely to the discretion of the Trial Court. Furthermore, the Appellate Courts should be reluctant to substitute its own evaluation of the evidence on child custody for that of the trial court.

           Custody can be changed until children turn eighteen (18), graduate from high school, or are living on their own. In a change of custody action, the moving party has the burden of proving: (1) a change of conditions occurring after the last order and, (2) that the change of conditions substantially affects the interest and welfare of the child.

           A change in conditions justifying a change in custody of the child simply means that sufficient facts have been shown to warrant the conclusion that the best interest of the child will be served by the change.

           Relocation. Pitt v. Olds, 489 S.E.2d 666 (1997). There is a presumption against removing a child from the State, but the power to require a parent to live in a particular area should be used sparingly. Best interests of the child are paramount. Multi-factors include:

1. Whether the move will improve the general quality of life for the child;
2. Whether the motive is to defeat visitation;
3. Whether the custodial parent will comply with visitation, and;
4. Whether the cost of transportation is financially affordable by one or both parents.

 

When parents attempt to regain lost custody, four factors apply:

1. Whether or not the parent is fit, able to properly care for the child and can provide a good home;

2. The amount of contact in the form of visits, financial support, or both, which the parent had with the child while it was in the care of the third party;

3. The circumstances under which temporary relinquishment of custody occurred; and,

4. The degree of attachment between the child and the temporary custodian. Moore v. Moore, 386 S.E.2d 456 (1989).

This information was prepared to give you some general information on the law. It is not intended as legal advice about any particular problem.