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Navigating Temporary Child Custody Orders in North Carolina

by Bill PowersJune 25, 2024 Child Custody0 comments

In the case of Lawrence v. Lawrence, the North Carolina Court of Appeals examined the complexities of transitioning from temporary to permanent custody orders. This June 18, 2024, case highlights important legal principles that impact parents navigating child custody arrangements and the need for timely action and the helpfulness of clear, unambiguous language setting forth that an agreement is without prejudice.

Case Background

The parents of a minor child were embroiled in a custody dispute over their daughter.

After their separation in November 2018, they agreed on a temporary custody arrangement in January 2019, which was later modified in April 2019.

The Plaintiff sought a permanent custody arrangement, while the trial court ruled that the temporary orders had become permanent due to the passage of time without a final hearing.

The Plaintiff appealed this decision.

The NC Court of Appeals ruled:

It is clear from the plain language of the Consent Order(s) that the agreement was entered without prejudice despite the failure to specifically include that term of art
The trial Court’s ruling that the Consent Order and the Modified Consent Order transitioned to permanent Custody Order “by acquiescence” was in error
The record “does not support” the trial Court’s conclusion that the Plaintiff failed to act in a timely fashion
The trial Court’s conclusion that neither parent filed requests for no less than 18 months is “unsupported by the evidence”
The relevant time period starts when the party requests a matter be set on for hearing, not when the hearing itself is held

Legal Principles and Court’s Reasoning

Temporary vs. Permanent Custody Orders

Temporary custody orders are intended to provide interim arrangements until a final custody decision is made.

These orders do not determine the parties’ ultimate rights and are usually short-term, designed to last only until a further court hearing. temporary child custody orders

Permanent custody orders, on the other hand, establish long-term arrangements that remain in effect until modified by the Court (the Judge).

Such orders can only be changed if a substantial change in circumstances affects the child’s well-being.

Determining Permanency: The Senner Test

The court applied the Senner test to determine whether an order is temporary or permanent. According to this test, an order is considered temporary if:

It is entered without prejudice to either party.
It states a clear and specific reconvening time within a reasonably brief interval.
It does not determine all issues.

If an order fails to meet any of these criteria, the child custody order could be deemed permanent.

The trial Court in this case had to decide if the temporary orders issued in January and April 2019 had become permanent.

Operation of Time and Acquiescence

A temporary order can become permanent if the parties do not seek a final hearing within a reasonable time.

The focus is on whether a party has actively pursued a hearing.

In this case, the trial Court ruled that the temporary orders had become permanent by acquiescence, stating that neither party sought a hearing within 18 months.

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Court of Appeals Decision

The North Carolina Court of Appeals disagreed with the trial Court’s ruling, finding that the Plaintiff had indeed made reasonable efforts to seek a final hearing. The NC Court of Appeals noted that:

The Plaintiff filed multiple calendar requests and notices for hearings on custody within nine months of the initial temporary order.
The delays were largely due to external factors, such as the COVID-19 pandemic and attorney withdrawals, rather than any lack of action by the Plaintiff.

Based on these findings, the Court of Appeals reversed the trial court’s decision and remanded the case for further hearings to establish a permanent custody arrangement.

Implications for Parents

This case underscores the importance of clearly setting forth the temporary nature of initial custody orders and the need for timely legal action to protect and preserve legal rights.

Parents involved in custody disputes should actively pursue final hearings and ensure that any delays are documented and justified, instead of relying on a temporary child custody order. NC Custody Orders

As a practical matter, including language within a Temporary Child Custody agreement setting forth the parties are not prejudiced is generally advisable but not necessarily dispositive.

It is helpful for the parties to make clear in the Consent Order that it is, in fact, a temporary custody arrangement that will be entered “without prejudice to the rights of either party.”

Indeed, even absent such “without prejudice” language, the Order may be deemed temporary if it is clear from the plain language within the Order that such Order will be entered without the loss of rights to either or both parties.

1. What is a temporary child custody order in North Carolina?

A temporary custody order provides a short-term arrangement for child custody while awaiting a final decision from the court. These orders establish immediate custody and visitation schedules to ensure stability and routine for the child during the legal process. Temporary custody orders help maintain the child’s well-being by outlining where the child will live and how much time they will spend with each parent until a permanent custody arrangement is determined.

2. How does a temporary order become permanent?

A temporary order can become permanent in North Carolina if it does not meet the criteria established by the Senner test, which includes:

It is entered without prejudice to either party.
It states a clear and specific reconvening time within a reasonably brief interval.
It does not determine all issues.

If these criteria are not met, and neither party seeks a final hearing within a reasonable time, the court may deem the temporary order permanent by default. The court considers whether the parties have actively pursued a hearing and whether there have been justified delays. If a significant period passes without action, the temporary order may become permanent in certain circumstances. Thereafter, seeking a modification of child custody in North Carolina requires a substantial change in conditions.

That’s one reason it makes sense to consult with a family law attorney about the specific aspects of your legal matter. If you have a child custody matter in Charlotte, please call now to discuss the firm’s availability for legal representation and the costs associated with retaining our divorce lawyers in Mecklenburg County. Call: 704-342-4357

3. What is considered a reasonable time to seek a final hearing?

The definition of a “reasonable time” can vary depending on the circumstances. Generally, courts expect parties to seek a final hearing in a timely fashion. Factors like court availability, legal counsel changes, and external events like the COVID-19 pandemic can influence what is considered reasonable. The Court may also consider whether the parties have been actively engaged in negotiations and attempting to resolve child custody issues through means other than litigation.

4. Can a permanent custody order in North Carolina be modified?

Yes, a permanent custody order can be modified, but it generally requires a substantial change in circumstances that affects the child’s well-being. This could include changes in the child’s needs, a parent’s relocation, or significant changes in a parent’s ability to care for the child. The requesting party must provide evidence to support the need for modification.

5. What should I do if a child custody order is not working for my family?

If a temporary child custody order is not meeting your family’s needs, you should seek legal advice to discuss possible modifications. It is important to document any issues with the co-parent and communicate with your attorney about the most appropriate course of action and the best interests of your child. If the court is tasked with the responsibility of determining custody, it must ensure the child’s best interests are met.

6. How does collaborative divorce work in Charlotte?

Collaborative divorce is a process where both parties and their attorneys work together to negotiate a settlement without the intervention of a family court judge. This approach focuses on cooperation and communication, allowing the divorcing couple to resolve various issues amicably.

In a collaborative divorce, the couple works with their attorneys and may also involve other professionals, such as financial advisors or child specialists, to address and resolve key issues including:

Equitable Distribution: The fair division of marital assets and debts.
Child Custody: Determining where the children will live and how parenting time will be shared.
Child Support: Establishing financial support for the children’s needs.
Alimony: Deciding on financial support for one spouse post-divorce.

The goal of collaborative divorce is to create a mutually agreeable settlement that meets the needs of both parties and their children, fostering a more positive and respectful post-divorce relationship. Once an agreement is reached, it should be reviewed and approved by the court to become legally binding. This method often reduces the emotional and financial stress associated with traditional divorce litigation.

7. How do mediation and collaborative divorce impact custody decisions?

Both mediation and collaborative divorce can be effective methods for resolving custody disputes without prolonged court proceedings. During mediation, both parties work with a neutral third party to reach an agreement. Similarly, in a collaborative divorce, both parties and their attorneys work together to negotiate a settlement. If an agreement is reached in either process, it should be reviewed and approved by the court to become legally binding. Both approaches provide a less adversarial and more cooperative way to address custody arrangements, promoting a positive outcome for all involved.

8. What role does the child’s preference play in custody decisions?

The child’s preference can be a factor in custody decisions, especially if the child is older and capable of expressing a reasoned preference. Courts will consider the child’s wishes alongside other factors, such as each parent’s ability to meet the child’s needs and the overall stability of the proposed arrangements. The child’s best interests remain the primary consideration.

9. What are the key factors in determining custody arrangements?

Courts consider various factors when determining custody arrangements, including the child’s best interests, each parent’s ability to provide care, the child’s relationship with each parent, and the child’s stability and continuity of care. The goal is to create a custody arrangement that supports the child’s well-being and development.

10. How can I ensure a smooth transition from temporary to permanent custody?

To ensure a smooth transition from temporary to permanent custody, maintain active communication with your attorney, attend all court hearings, and comply with court orders. Document your involvement and efforts to provide a stable environment for the child. Seeking a timely final hearing and being prepared can help facilitate a smooth transition.

11. What if both parties agree on custody changes?

If both parties agree on custody changes, they may be able to submit the modified agreement to the court for approval. This ensures the changes are legally binding and enforceable. It is a good idea to work with legal counsel to ensure the agreement meets legal standards and addresses all relevant issues.

By understanding the legal principles and processes involved in child custody cases, parents can navigate the system more effectively and make informed decisions that prioritize their child’s well-being.

This blog post aims to provide a clear and comprehensive understanding of the legal principles involved in the Lawrence v. Lawrence case, helping parents grasp the complexities of temporary custody orders. If you would like more information about Child Custody legal issues in Charlotte, we may be able to help. Call Now: 704-342-4357

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Charlotte Child Custody Lawyer – Bill Powers

In conclusion, the Lawrence v. Lawrence case, as deliberated by the North Carolina Court of Appeals on June 18, 2024, sheds light on the intricate processes involved in transitioning from temporary to permanent custody orders. This case underscores some of the vital legal principles that shape child custody in North Carolina, emphasizing the importance of timely action and the clarity of agreements made without prejudice. By understanding these nuances, parents can navigate the complexities of family law with greater clarity, helping to protect the best interests of children. If you are in need of a child custody lawyer in Charlotte and the surrounding counties of Union, Iredell, or Gaston County NC, please call 704-342-4357 now to schedule a confidential consultation.

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