Graduated visitation OK

A district court judge did not err by ordering a graduated visitation schedule for the plaintiff father that will culminate in 2020 with the father’s sharing equal custody of his three minor children, the state Court of Appeals unanimously held Oct. 3.

The defendant, Carrie Bartlett, argued that Judge Melinda Crouch abused her discretion by entering a permanent custody order that predicted a future change in circumstances rather than one based on the circumstances as they were at the time of the custody hearing.

The appeals court panel disagreed, finding that the trial court “considered the welfare of the minor children based on the circumstances at the time of the hearing and employed a prospective outlook into formulating a custody schedule.”

“Here, the trial court was not predicting a future change in circumstances,” Judge John Arrowood wrote for the court. “Rather, the record indicates that the trial court fashioned a custody plan that was in accordance with the recommendations provided by (clinical psychologist) Dr. Sloan through his testimony and written report, both of which were submitted at the custody hearing.”

Carrie Bartlett’s attorney, James Lea III of Lea/Schultz Law in Wilmington, said that one thing he’s learned in 37 years of practicing domestic law is that nothing ever stays the same.

“I really don’t think we should be in the business in dealing with the fact situations except the one that’s in front of us,” Lea said. “And if we’re going to project custody schedules out four and five years from the date we’re hearing the evidence that exists at that time — I just don’t think that’s good practice.”

Carrie and plaintiff Edwin Bartlett married in 2007 and, from 2009 to 2014, had three children together. The couple separated in September 2015, and both parties sought child custody and support. They agreed to undergo psychological evaluations by Dr. Jerry Sloan to determine each parent’s ability to appropriately parent minor children.

Sloan found that Edwin had sometimes failed to maintain close supervision and was relatively inexperienced in watching all three children for extended periods of time. He found that Carrie was anxious and overprotective, and had restricted Edwin’s access to the children in the past.

Ultimately, Sloan recommended that it would be in the children’s best interest to spend more time with Carrie initially, and gradually transition into a 50/50 physical custody arrangement.

The trial court agreed, and laid out a custody plan that will ultimately lead to just that arrangement, with the two parents sharing custody on a week on/week off basis, exchanging the children at 1 p.m. every Sunday.

Carrie also argued that the trial court “forecasted future speculation that the parties and their children will be in a position to maintain an equal custody schedule” in 2020, and that the court shifted the burden from the plaintiff to the defendant to demonstrate that the week on/week off provision is not in the best interest of the children.

The court cited both state law and 2003’s Shipman v. Shipman in declaring that if in or about 2020, Carrie finds the custody arrangement not feasible or advisable because of a change of circumstances, “she can seek modification at that time.”

Lea, Carrie’s attorney, said he understands why the court ruled the way it did — because of the recommendation of Sloan, the clinical psychologist — but doesn’t believe the order should just “default” to 50/50 custody later on.

“My client got primary custody, so why shift the burden to us to four years from now have to come in and say 50/50 isn’t going to work because here’s what happened all these years?” he said.

For Edwin Bartlett’s attorney, J. Albert Clyburn of Wilmington, the ruling was predictably a little more understandable.

“I don’t really have a problem with a court creating a graduated schedule to give a family time to adjust to its new reality,” he said. “If four years from now dad is not doing what dad needs to do to be a 50/50 parent, bring it to the court’s attention and we can take a look at it.”

The 10-page decision is Bartlett v. Bartlett (Lawyers Weekly No. 012-148-17). A digest of the opinion is available online at nclawyersweekly.com.

Follow Heath Hamacher on Twitter @NCLWHamacher