North Carolina Lawyers Weekly
Although the juvenile court’s order in a neglect proceeding was insufficient to transfer jurisdiction to a pending child custody action, the order effectively terminated jurisdiction under G.S. § 7B-201. Upon the termination of jurisdiction in the neglect proceeding, the legal status of the juvenile and the custodial rights of the parents reverted to the status they were before the juvenile petition was filed. Therefore, the trial court in this child custody action had subject-matter jurisdiction to consider plaintiff’s custody claim once plaintiff invoked that jurisdiction by filing his motion in the cause. Thus, the trial court did not err in asserting jurisdiction over the child custody action after the neglect proceeding was terminated.
We affirm the custody order.
The trial court in the neglect proceeding did not enter any permanent custody order in compliance with G.S. § 7B-911. In the absence of an existing permanent child custody order, the parties were not required to allege, and the trial court was not required to find or conclude, that there existed a substantial change of circumstances affecting the welfare of the child for purposes of modifying an existing custody order under G.S. § 50- 13.7. Rather, the trial court in the child custody action was permitted to make an initial child custody determination based on the best interests of the minor child under G.S. § 50-13.1 and § 50-13.2.
Even assuming the juvenile order in this case did result in a permanent custody order subject only to modification under § 50-13.7, plaintiff’s own motion in the cause adequately alleged a substantial change of circumstances affecting the welfare of the child. Specifically, the motion in the cause alleged that, subsequent to the termination of the neglect proceeding in April 2012, the parties had maintained an alternating custody schedule, but that in 2014, defendant had allegedly been observed to be highly intoxicated around the child during custody exchanges. Defendant filed a response to this motion containing her own rebuttal and allegations to plaintiff’s motion. The parties’ allegations in these filings would be sufficient to allege a substantial change in circumstances affecting the welfare of the child to permit the trial court to consider a modification of child custody.
McMillan v. McMillan (Lawyers Weekly No. 011-257-19, 17 pp.) (Toby Hampson, J.) Appealed from Forsyth County District Court (George Bedsworth, J.) John Vermitsky for plaintiff; Christopher Beal for defendant. N.C. App.
