NC COA: Modification Of Custody, Walsh v. Jones

By Ketan Soni

The Father’s record from 2004 and 2005 included acts of domestic violence, abuse of illegal drugs, anger management issues, and allegations of inappropriate touching of the minor child.

In 2010, the court found Father was not a fit and proper person to have custody or visitation of any nature.

In 2016, Father filed a Motion to Modify, alleging that he was released from prison, participated in various programs, paid child support, passed all drug tests, was residing with his mother, and felt remorse for his prior actions.

Mother hated that idea, but the trial court modified custody and allowed resumption of gradually increasing visitation.

On appeal, whether the trial court is ruling on a motion to dismiss under Rule 41(b) or ruling on the substantive claim for modification of custody, the trial court is doing essentially the same thing; in both instances, the trial court must evaluate the evidence to determine whether the motion to modify custody has merit and must make findings of fact.

The trial court must first determine if there has been a substantial change in circumstances and if so, the trial court must consider the effect on the child and if a modification is in the child’s best interests.

Here, the trial court made findings regarding many positive changes in Father’s life and determined that the minor child would benefit from resumption of her relationship with him.

No abuse of discretion, and therefore affirming the trial court’s modification of custody.