Domestic Relations – Parent & Child – Custody – Substantial Change in Circumstances – Waiver

Hibshman v. Hibshman (Lawyers Weekly No. 11-07-0502, 20 pp.) (Sam Ervin IV, J.) Appealed from Rowan County District Court. (Charlie Brown, J.) N.C. App. Click here for the full-text opinion.

Holding: Where a judge entered an order changing primary custody of a couple’s children from the mother to the father, the judge erred by not determining whether there had been a substantial change of circumstances.

Discussion

Defendant contends, among other things, that she did not have the ability under N.C. law to waive the necessity for a showing of a change in circumstances as a precondition for modification of a prior custody order and that the trial court erred by failing to address the “changed circumstances” issue in reliance on her agreement not to insist that such a showing be made.

A careful analysis of the language of G.S. ¤50-13.7, coupled with statements made in related case law, leads us to the conclusions that (1) the requirement set out in G.S. ¤50-13.7 that a child custody order may only be modified upon a proper showing, is not a personal right possessed by a litigant, but is instead a legislatively mandated limitation on the authority of the courts to modify prior custody orders and that, (2) if the necessity to show a substantial change of circumstances were to be treated as an individual right possessed by a parent rather than as a rule intended to protect the affected child, such an interpretation would be completely inconsistent with the clear emphasis of our Supreme Court and this court upon the purposes served by the “changed circumstances” requirement. As a result, we conclude that defendant did not have the ability to “waive” the requirement that the trial court find a substantial change in circumstance before modifying a prior custody order, so that the trial court erred by failing to address the “changed circumstances” issue at the time that it awarded plaintiff custody of the parties’ children.

Thus, we conclude that the trial court erred by changing the custody of the minor children, without first determining that there had been a substantial change of circumstances. Having reached this result, we need not address defendant’s remaining challenges to the trial court’s order. The trial court’s order is reversed, and this matter is remanded for further proceedings not inconsistent with this opinion.