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Spat between parents may constitute ‘change in circumstances’

It’s never easy for a kid to be shuttled back and forth between two divorced parents who cannot communicate constructively. But it can get even worse for a child as he or she gets older and becomes more aware of the hostility between his or her parents. If a recent decision out of North Carolina is any indication, this growing awareness of the parents’ hatred toward one another may even be grounds for modifying a custody order.

In that case, a couple divorced in 2012 and a judge awarded the father primary physical care and custody of the couple’s young daughter “Reagan.” The judge apparently made this decision based on the couple’s “utter inability” to work together for their daughter’s benefit as well as the mother’s repeated, unsubstantiated allegations that the father was abusing Reagan.

Two years later the mother asked the court to modify the custody order, claiming that the father’s new girlfriend was acting as Reagan’s primary caregiver. A trial judge granted the motion, citing “changed circumstances” and giving the mother primary custody.  Specifically, the judge found that the parents still couldn’t communicate effectively and that Reagan, who was getting older and becoming more aware of the situation, was experiencing increasingly higher anxiety as a result. He also noted that the father and his girlfriend were keeping Reagan away from other family members and that the mother was no longer making false abuse allegations.

The father appealed, arguing that his differences with his ex-wife were not grounds to modify custody based on a change in circumstances, since they hadn’t gotten along from the beginning.

But the North Carolina Court of Appeals disagreed, finding it “entirely foreseeable” that communication problems between parents would affect a child more as she grows older, becomes involved in more activities that require her parents to cooperate, and becomes more aware of and sensitive to conflict between her parents.

The law may differ from state to state, so check with a family lawyer to find out how these situations are handled where you live.

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