How do I file a consent custody modification to change primary residence for the school year where the original order was entered? – North Carolina

Short Answer

In North Carolina, changing a child’s primary residence for the school year generally requires filing a Motion to Modify Child Custody in the same case where the current custody order was entered, along with a proposed Consent Order Modifying Custody signed by both parents. Even when both parents agree, the judge must still enter a new court order, and the paperwork usually needs to show a legally sufficient reason to modify (often described as a changed circumstance) and that the change serves the child’s best interests. To reduce the risk of delay, the motion, proposed consent order, and required notices should be filed with the Clerk of Superior Court for the county where the case is pending, and properly served.

Understanding the Problem

The issue is how a parent in North Carolina can get a court to approve an agreed change to a custody order so that the child’s primary residence during the school year switches to the other parent, using a consent custody modification filed in the same county and case where the current custody order was entered. The single decision point is whether the agreed change can be turned into an enforceable court order quickly, before either parent changes positions, by filing the correct modification paperwork in the existing custody case.

Apply the Law

Under North Carolina law, a child custody order can be modified “at any time” by filing a motion in the cause and showing changed circumstances, and the court must also determine that the requested change is in the child’s best interests. In practice, even when both parents agree, the court typically expects a properly filed motion (or other proper pleading in the existing case), a proposed written consent order, and proof that the other party received proper notice or has waived notice in an acceptable way. The main forum is the District Court Division in the county where the underlying custody case is filed, with documents processed through the Clerk of Superior Court.

Key Requirements

Proper filing in the existing case (“motion in the cause”): The request to change the custody terms should be filed under the same case number as the existing custody order, following North Carolina custody procedure.
Changed circumstances affecting the child: The filing should support that something material has changed since the last custody order that impacts the child, not merely that the parents prefer a different schedule.
Best interests and a clear, workable new plan: The proposed consent order should clearly state the school-year primary residence and the parenting schedule, in a way the court can find serves the child’s best interests and is enforceable.

What the Statutes Say

N.C. Gen. Stat. § 50-13.7 (Modification of custody orders) – Allows modification of a North Carolina custody order upon motion in the cause and a showing of changed circumstances, subject to jurisdiction rules.
N.C. Gen. Stat. § 50-13.5 (Procedure; notice; venue) – Sets out that custody actions follow civil procedure rules and addresses notice requirements for motions in pending custody cases.

Analysis

Apply the Rule to the Facts: Here, there is already an existing custody order from North Carolina that the parties want to change again, and both parents agree that the child’s primary residence should be with one parent during the school year. North Carolina still generally requires a filed modification request in the existing case and a court-signed order; private messages alone do not change the current order. Because the parents want speed and certainty, filing a Motion to Modify with a proposed Consent Order helps get the agreement in front of a judge for entry as an enforceable order.

Process & Timing

Who files: Either parent (often the parent seeking the school-year primary residence), or both through counsel. Where: Clerk of Superior Court, District Court Division, in the same county and under the same case number where the current custody order was entered. What: A Motion to Modify Child Custody (motion in the cause), a proposed Consent Order Modifying Child Custody, and any local cover sheets or scheduling requests required by that county. When: File as soon as the agreement is reached; for motions in an existing case, North Carolina law commonly uses 10 days’ notice for custody-related motions unless notice is properly waived or the court sets a different schedule.
Serve and document consent: Ensure the other parent receives proper service/notice under the rules, or signs the appropriate documents showing consent in a way the court will accept. If the parents sign before a notary, that can help reduce disputes about authenticity, but notarization alone does not replace filing and entry by the court.
Submit for entry and follow local practice: Many counties route proposed consent orders to a judge for review and signature without a full hearing, but practices vary. Once the judge signs and the clerk “enters” the order, the modified terms become enforceable.

Exceptions & Pitfalls

“We agree” is not the same as an entered order: Messages or a signed private agreement usually do not change custody terms unless a judge signs and the clerk enters a new order.
Changed circumstances still matter: Courts generally require a legally sufficient reason to modify an existing custody order. A change in residence or school-year placement often needs facts showing an impact on the child, not just parent preference.
Unclear drafting causes delays: Vague language about “primary residence” can create school enrollment and exchange disputes. A strong consent order typically defines the school-year dates, exchange times/locations, holiday breaks, transportation, and how school decisions are handled.
Notice/service problems: If notice is not handled correctly, a judge may refuse to sign the consent order immediately, require corrections, or set the matter for hearing.
Local rules vary by county: Some counties require parenting education certificates, proposed order formatting rules, or specific submission procedures for consent orders.

Conclusion

In North Carolina, an agreed change of a child’s school-year primary residence usually becomes enforceable only after filing a custody modification request in the existing case and obtaining a judge-signed, clerk-entered consent order. The filing typically needs to (1) be brought by motion in the cause in the original case, (2) support changed circumstances affecting the child, and (3) present a clear plan that serves the child’s best interests. The next step is to file a Motion to Modify and proposed Consent Order with the Clerk in the original county and serve it with at least 10 days’ notice unless properly waived.

Talk to a Family Law Attorney

If a custody order needs to be modified by consent to change the child’s primary residence for the school year, experienced attorneys can help prepare the motion and consent order, follow county-specific filing rules, and move the paperwork through as efficiently as possible. Call 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.