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Domestic Relations – Parent & Child – Custody – Constitutional – Due Process – In-Court Pronouncement & Written Order

At the conclusion of the parties’ custody hearing, the trial court announced that it would give the parties joint physical custody of their child; nevertheless, the trial court was free to make a different ruling in its subsequent written order, giving the defendant-mother primary custody and the plaintiff-father alternating weekend visitation.

We affirm the custody order.

Trial courts are free to change their minds between the conclusion of a hearing and the entry of a written order and may enter a written order that conflicts with oral statements made in court by a judge.

Here, the trial court addressed the issue of physical custody in court and did not explain why it changed its decision in the written order. However, the important consideration is whether the final, entered order reflects what was argued at trial.

The plaintiff-father fully expected the trial court to issue a decision pertaining to the legal and physical custody of “Rose,” albeit one consistent with the oral ruling given at the conclusion of the hearing. Further, the father participated in a full custody hearing in which he received ample opportunity to raise all arguments regarding the pending physical custody of Rose. The trial court’s actions did not give rise to any further need to be heard because there were no new, material considerations decided in the order, but unheard at trial.

The trial court did not err by entering an order that reached a conclusion that differed from its oral pronouncement.

The father also argues that the trial court should have given weight to the parties’ oral agreement at trial that alternating weekly custody was working out well.

However, the trial court ultimately found that the father’s visitation with Rose was “sporadic,” that he refused many opportunities to see her, and that he sometimes refused to keep her when she was sick or upset. At trial, the mother presented a log recording each interaction the father had with Rose prior to the commencement of this action in August 2016. Although the father presented evidence that he and Rose had bonded during the alternating weekly custody plan established by an October 2016 temporary custody order, the trial court was free to make such findings supported by the evidence and conclusions as it deemed appropriate.

We hold that the trial court did not violate the father’s due process rights by altering its final decision in the case outside of his presence. The trial court was free to issue any decision sufficiently supported by the evidence. We conclude that the trial court’s decision was based upon sufficient evidence.


Whitley v. Baugess (Lawyers Weekly No. 012-051-18, 8 pp.) (Chris Dillon, J.) Appealed from Wilkes County District Court (Jeanie Reavis Houston, J.) J. Clark Fischer for plaintiff; no brief filed for defendant. N.C. App. Unpub.


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