Deanes v. Deanes No. COA19-120 (Bertie County File 12 CVD 100)
This case out of Bertie County and was originally heard in front of Judge Teresa Freeman
Quick run down of the facts
These parties were previously married, and have since divorced. They had two children together, both little boys. There was a 2012 custody order entered that allowed dad supervised visitation with the children, and reasonable telephone calls, due to dad’s issues with alcohol. Shortly after the order was entered mom started allowing dad unsupervised visitation and that continued until 2016, without incident. By this time dad was remarried to a woman who had one child of her own and they had a child together. Dad lived in Virginia at this time and mom still lived in North Carolina. They were exercising a visitation around the holidays and dad and step-mom left the children home alone for a period of time with the oldest child, Carter (10 years old) in charge. They left him a cell phone if he had any issues, so he could call them. Carter got freaked out and couldn’t use the cell phone his dad had given him, so he used his own cell phone and called his mom. Without taking any other action, like calling to the local police to do a welfare check, or calling dad directly, she hopped in the car and went to pick up her two children. She got there around 4:00 a.m. and left with the children, but did not notify dad until around 5:00 a.m. It is unclear where the other two children were, or where even dad was at this time.
This happened in November 2016. Dad did not see his son’s again until June 2018. During this time dad called 225 times but was only allowed to speak to his children 5 times.
Finally, in November of 2017 dad filed a motion for contempt, a motion to modify child custody and a motion to modify child support. Mom then filed her own motion to modify child custody, motion to modify child support and show cause motion.
Ruling:
The presiding Judge in this case found that there was a substantial change of circumstances warranting a change in custody and found both parties were in contempt. He granted primary custody of the younger son to dad, and primary custody of the older son to mom. The children would visit with the other parent on weekends and the weekends were to coordinate so the boys were together.
Motion to Modify Child Custody:
The test:
- Is there a significant change in circumstances?
- The appeals court was very clear, that changes do not all have to be bad. Any good changes, like the fact that there were not instances from 2012 to 2016, are important factors.
- A child aging is not a significant change, in and of itself. Clearly, children’s needs change drastically over the years, but that is not enough on its own to warrant a change of circumstances that would allow for a modification of child custody.
- Is it in the best interest of the child(ren) to modify the current custody order?
- You need to put on evidence as to bonds that have formed between stepparents, step siblings, or half siblings.
- Another Sub
The standard of review if Abuse of Discretion.
THE KEY TO THIS CASE
Self-help is never the answer. Mom unilaterally stopped following the child custody order entered in 2012 but took no actions through the court system to change the actual order. Mom not only cut off visitation, but she did not treat dad as if he had joint legal custody either. The oldest child had major dental surgery while mom had cut off communication and did not involve dad in that at all. Dad had joint legal custody based on the 2012 order.
The Court Specifically stated, “Any parent who completely severs a child’s relationship with the other parent, baring extreme circumstances shown, clearly has the inability to act in the best interest of the child.”
Mom tried to totally severe the children’s relationship with their father and that is NOT ok.
To be clear, interference in visitation alone, is not enough to change custody. The interference has to be so severe that it harms the child’s loving relationship with the other parent. Even if that is proven it is not guaranteed to warrant a change in custody, but in this case that along with everything else met the burden.
The Court of Appeals also stated that the Trial Court did not have to wait for adverse effects on the child to manifest before the Court could alter custody.
The Trial Court did the correct thing in making sure the children had visitation on the same weekends to keep that close bond between them as well.
Phone calls:
The Court of Appeals also make made it clear that because the phone calls were in a separate clause, they were a separate issue, that mom had also violated. Phone calls supplement visitation but are not equal to visitation. In this case, even if dad had been found to be drinking and stopped physical visitation, that did not mean his phone calls stopped because they were a separate clause. That is an important drafting tip, to ensure you always put those issues separate.
