subject: North Carolina Child Physical Temporary Custody Lawyers Attorneys [print this page] MANUELA LENZ MILLER, Plaintiff, v. FREDERICK MAX MILLER, Defendant.
COURT OF APPEALS OF NORTH CAROLINA
November 3, 2009, Heard in the Court of Appeals
December 22, 2009, Filed
Defendant and Plaintiff Manuela Miller got married on 24 May 1998. One child was born of the marriage on 10 March 1999. On 13 January 2006 the plaintiff filed a complaint for divorce from bed and board and child custody in North Carolina. On 26 May 2006, the trial court entered a consent order awarding the parties temporary joint custody of the child. Plaintiff was awarded physical custody eight nights out of each two week interval and defendant was awarded the remaining six nights. The order specified that the issue of final child custody, alimony, additional attorney fees, and equitable distribution of marital property would remain pending until resolved by the trial court. On 23 January 2007, defendant filed an "Answer, Defense, and Counterclaim. On 24 October 2008 the trial court entered a permanent child custody order, that the plaintiff retains physical custody of the child during the school year and that defendant have physical custody during the summer months. Defendant appeals this order.
Issues:
Whether the trial court erred by finding and concluding that the temporary child custody order had not become a permanent custody order as of May 2008?
Whether the trial court erred by applying the best interest standard?
Whether the trial court erred in overruling the consent order?
Discussion:
The court determines that the 26 May 2006 consent order had not become a permanent order but remained temporary. After considering the evidence presented at the hearing and on the record, the court concludes that it was in the best interest of the minor child that plaintiff retain physical custody of the child during the school year and defendant have physical custody during the summer months. The court holds that there is competent evidence to support the trial court's finding that the child custody matter did not lie dormant after the 26 May 2006 consent order was entered and this finding supports the trial court's conclusion that the 26 May 2006 consent order remains a temporary order.
Therefore, this Court held that the trial court did not err in utilizing the best interest of the child standard to establish child custody rather than reviewing the evidence for a substantial change in circumstances.
The court holds that the trial court had not erred in overruling the consent order. If a child custody or visitation order is considered final or permanent, the court may not make any modifications to that order without first determining that there has been a substantial change in circumstances in the case. However, if a child custody or visitation order is considered temporary, the applicable standard of review for proposed modifications is best interest of the child, not substantial change in circumstances. Accordingly, defendant's assignments of error are overruled.
Conclusion:
Hence this Court affirmed the judgment of the trial court that the plaintiff mother retains physical custody of the child during the school year and that the defendant should have physical custody during the summer months.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
North Carolina Child Physical Temporary Custody Lawyers Attorneys
By: Atchuthan Sriskandarajah
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