Do I need to file a new custody case to change our parenting schedule if we can’t agree? – North Carolina

Short Answer

In North Carolina, if there is no existing custody court order (only a private parenting plan that was not entered by a judge), a parent typically must file a new child custody action to get a binding schedule. If there is an existing custody order, a parent usually files a motion to modify in the same case (not a brand-new case) and must show a changed circumstance affecting the child. The right filing depends on whether a judge has already entered a custody order in the case.

Understanding the Problem

In North Carolina family law, the decision point is whether the current parenting schedule is a court order or only a private parenting agreement. When parents cannot agree to change the schedule, the question becomes: can a parent ask the District Court to set or change custody and visitation, and if so, does that require starting a new custody case or filing something in an existing case?

Apply the Law

North Carolina treats a private parenting plan differently from a custody order signed by a judge. A private plan can be useful, but it is not enforceable as a court order unless it is entered as a consent order (or incorporated into another court order). If there is no prior custody order, the court is being asked to make an initial custody determination, which is generally done by filing a custody complaint as a new civil action in District Court. If there is a prior custody order, the court can change it only through a modification request filed in the existing case, and the moving party must show changed circumstances affecting the child and that the requested change serves the child’s best interests.

Key Requirements

  • Identify what exists now (agreement vs. court order): A private parenting plan is not the same as a custody order signed by a judge and filed in the court file.
  • Pick the correct procedural path: No prior custody order usually means filing a new custody action; a prior custody order usually means filing a motion to modify in the existing case.
  • If modifying an order, show a qualifying change: North Carolina generally requires a substantial change in circumstances affecting the child since the last custody order, and the requested change must be in the child’s best interests.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe a parenting plan that was filed outside of court and not entered as a custody court order. In that situation, there is usually no “existing custody order” to modify, so the court is being asked to set a custody/visitation schedule for the first time. If the parents cannot agree on changes, the typical path is to file a new custody action in North Carolina District Court so a judge can enter an enforceable order.

Process & Timing

  1. Who files: Either parent. Where: North Carolina District Court (filed with the Clerk of Superior Court in the appropriate county). What: A child custody complaint (and related civil summons and required filings), requesting custody/visitation terms that include the parenting schedule. When: There is no single statewide “must file by” deadline for an initial custody case, but timing matters because the schedule stays uncertain until a court order is entered.
  2. Service and early scheduling: The other parent must be properly served under the civil rules. Depending on the county, the case may be set for custody mediation/parenting coordination steps before a judge hears contested custody issues.
  3. Resolution: If the parents reach agreement, the terms can be presented to the judge as a consent custody order. If not, the judge can enter a custody order after a hearing, setting a schedule that is enforceable by the court.

Exceptions & Pitfalls

  • Accidentally filing the wrong thing: If a parent files a “motion to modify” but there is no prior custody order, the court may treat the request as procedurally improper and require an initial custody filing instead.
  • Confusing a private plan with a court order: A plan signed by the parents (even if notarized or “filed” somewhere) is not automatically enforceable like a judge-signed order.
  • If a custody order does exist, the standard changes: When there is an existing order, North Carolina generally requires proof of a substantial change in circumstances affecting the child since the last order, plus a best-interests showing, before the court will change the schedule.
  • Jurisdiction issues: If another state has entered a custody order, North Carolina may be limited in its ability to modify it under the UCCJEA unless specific jurisdiction requirements are met.

For a related discussion of changing parenting time when one parent is not following the schedule, see change custody or parenting time because the other parent keeps withholding the child and missing scheduled visits.

Conclusion

In North Carolina, changing a parenting schedule without agreement usually depends on whether there is already a judge-signed custody order. If there is no custody order and the schedule exists only in a private parenting plan, a parent typically needs to file a new custody action in District Court to obtain an enforceable schedule. If there is an existing order, the correct next step is usually to file a motion to modify in the same case and prove changed circumstances affecting the child.

Talk to a Family Law Attorney

If parents are dealing with a parenting schedule that is not working and agreement is not possible, our firm has experienced attorneys who can help explain options, filing steps, and timelines under North Carolina law. Call us today at 919-341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Family Law Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.