Bivens v. Cottle

6 Citing cases

  1. Hibshman v. Hibshman

    710 S.E.2d 438 (N.C. Ct. App. 2011)   Cited 23 times
    Finding remand for further proceedings to be required where trial court did not make a finding showing a substantial change in circumstances before modifying custody

    (emphasis added). Bivens v. Cottle, 120 N.C. App. 467, 469, 462 S.E.2d 829, 831 (1995), disc. review improvidently granted, appeal dismissed, 346 N.C. 270, 485 S.E.2d 296 (1997) . As a result, according to well-established North Carolina law, the "requirement of substantial change is an effort to lend `such stability as would end the vicious litigation so often accompanying such contests[.]

  2. Warner v. Brickhouse

    189 N.C. App. 445 (N.C. Ct. App. 2008)   Cited 11 times
    Noting potential for overlap

    Brewer v. Brewer, 139 N.C.App. 222, 229, 533 S.E.2d 541, 547 (2000) (emphasis added); see alsoBivens v. Cottle, 120 N.C.App. 467, 468, 462 S.E.2d 829, 830 (1995) (“[I]n a custody dispute between a natural parent found to be a fit and proper parent who did not neglect the welfare of their child, and any third party excepting only the other natural parent, the natural parent must prevail in an initial determination of child custody. " ) (emphasis added), appeal dismissed per curiam, 346 N.C. 270, 485 S.E.2d 296 (1997) .           To modify a child custody or support order, N.C.G.S. § 50-13.7(a) requires a “motion in the cause and a showing of changed circumstances by either party or anyone interested."

  3. In the Matter of Guinta v. Doxtator

    20 A.D.3d 47 (N.Y. App. Div. 2005)   Cited 34 times
    In Guinta v. Doxter, 20 AD3d 47 (4th Dept. 2005), the Fourth Department held that once a preferred status of the birth parent has been lost by a judicial determination that extraordinary circumstances warranted an award of custody to a nonparent, the appropriate standard in addressing the possible modification of the prior order is whether there has been a change in circumstances requiring a modification of custody to ensure the best interests of the children.

    Policies differ among the states with respect to criteria for modifying custody orders. Numerous states adhere to the principle that the parental preference no longer applies where there has been a prior judicial determination applying the parental preference and nevertheless awarding custody to a nonparent ( see Ex parte McLendon, 455 So 2d 863, 865 [Ala 1984]; C.R.B., 959 P2d at 380-381; Jones v. Strauser, 266 Ark 441, 443, 585 SW2d 931, 932; Willis v. Duck, 733 So 2d 707, 713 [La 1999]; Barnett v. Oathout, 883 So 2d 563, 567-568 [Miss 2004]; Searcy v. Seedorff, 8 SW3d 113, 117 [Mo 1999]; Bivens v. Cottle, 120 NC App 467, 469, 462 SE2d 829, 831, appeal dismissed 346 NC 270, 485 SE2d 296; In re Whiting, 70 Ohio App 3d 183, 186-187, 590 NE2d 859, 861-862; Johnson v. Johnson, 681 P2d 78, 80-81 [Okla 1984]; Lear v. Lear, 124 Or App 524, 527, 863 P2d 482, 484; Blair v. Badenhope, 77 SW3d 137, 148 [Tenn 2002]; In Interest of Ferguson, 927 SW2d 766, 768-769 [Tex 1996]; Dyer v. Howell, 212 Va 453, 455-456, 184 SE2d 789, 791-792). Other states apply the parental preference in all custody proceedings, whether they are initial proceedings or proceedings to modify prior orders ( see e.g. Perez v. Perez, 212 Conn 63, 77-79, 561 A2d 907, 915 [1989]; Ward v. Ward, 874 So 2d 634, 636-638 [Fla 2004]; In re Custody of Walters, 174 Ill App 3d 949, 952, 529 NE2d 308, 310-311; Hunt v. Whalen, 565 NE2d 1109, 1110-1111 [Ind 1991]; Matter of Guardianship of Williams, 254 Kan 814, 828, 869 P2d 661, 670; Heltzel v. Heltzel, 248 Mich App 1, 23-24, 638 NW2d 123, 136, lv denied 465 Mich 942, 639 NW2d 256).

  4. Johnson v. Adolf

    149 N.C. App. 876 (N.C. Ct. App. 2002)   Cited 17 times
    Holding that determination of whether movant has satisfied burden of proof is conclusion of law

    In a custody modification action, even one involving a parent, the existing child custody order cannot be modified except upon a showing by the party seeking a modification that there has been a substantial change in circumstances affecting the welfare of the child and if so, that a change in custody is in the best interest of the child. Bivens v. Cottle, 120 N.C. App. 467, 469, 462 S.E.2d 829, 831 (1995), appeal dismissed, 346 N.C. 270, 485 S.E.2d 296 (1997). The trial court must first determine whether the movant has met her burden of making these showings.

  5. Cantrell v. Wishon

    141 N.C. App. 340 (N.C. Ct. App. 2000)   Cited 23 times
    Reversing denial of custody and remanding for findings on whether the mother acted inconsistently with her constitutionally-protected status with a direction to consider, among other factors, “the effect, if any, of the document that the mother signed relinquishing custody of her children to the [third parties]" and “the mother's role in building the relationship between her children and the [third parties]"

    In Petersen v. Rogers, supra, our Supreme Court recognized that parents have a constitutionally protected right to the custody, care and control of their child, absent a showing of unfitness to care for the child. Accord Bivens v. Cottle, 120 N.C. App. 467, 462 S.E.2d 829 (1995), appeal dismissed, 346 N.C. 270, 485 S.E.2d 296 (1997). After Petersen, our Supreme Court in Price v. Howard, supra, held that the "protection of the parent's interest is not absolute" and "`the rights of the parents are a counterpart of the responsibilities they have assumed.'"

  6. Brewer v. Brewer

    139 N.C. App. 222 (N.C. Ct. App. 2000)   Cited 56 times
    Holding that "a year is too long a period to be considered as ‘reasonably brief,’ in a case where there are no unresolved issues"

    In subsequent cases, this Court has carefully applied Peterson. See Bivens v. Cottle, 120 N.C. App. 467, 462 S.E.2d 829 (1995), appeal dismissed , 346 N.C. 270, 485 S.E.2d 296 (1997); Lambert v. Riddick, 120 N.C. App. 480, 462 S.E.2d 835 (1995); Speaks v. Fanek, 122 N.C. App. 389, 470 S.E.2d 82 (1996). In the Bivens line of cases, this Court stated that Peterson only applies to an initial custody determination.