Ratley v. Ratley

PHILLIPS, Judge. By an order entered in October, 1986 Judge Gardner awarded custody of the twin children of the parties to plaintiff and allowed defendant extensive visitation rights. Defendant’s appeal is from Judge Floyd’s denial of his motion to modify the order by awarding him either sole or joint custody. The appeal has no basis. Though it has long been established in this jurisdiction that a child custody order may not be modified [220] in the absence of a substantial change of circumstances which affect the welfare of the child involved, G.S. 50-13.7; Neighbors v. Neighbors, 236 N.C. 531, 73 S.E.2d 153 (1952); In re Means, 176 N.C. 307, 97 S.E. 39 (1918), defendant does not argue in his brief that any such change has occurred. He argues only that his sole or joint custody should have been ordered because the evidence indisputably shows that he is a “caring, loving and capable father.” The time for that argument, standing alone, passed long since. That defendant is a fit person to have sole or joint custody of the children, by itself, is no basis for modifying the order previously entered. Before the prior order can be modified it must be established that a substantial change of circumstances affecting the welfare of the children has occurred, Searl v. Searl, 34 N.C. App. 583, 239 S.E.2d 305 (1977), and that has not been done. Affirmed. Judges ARNOLD and Cozort concur.