N.C.G.S. 50-13.7(A) Interpretation
"In Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), 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." Cantrell v. Wishon, 141 N.C. App. 340, 342, 540 S.E.2d 804, 806 (2000);
See also Everette v. Collins, 176 N.C. App. 168, 173 n.3, 625 S.E.2d 796, 799 n.3 (2006) ("In Petersen, the North Carolina Supreme Court found that in custody disputes between parents and third parties, parents have a constitutionally-protected paramount right to the custody, care, and control of their children.").
However, this Court has stated that this presumption "only applies to an initial custody determination." Brewer v. Brewer, 139 N.C. App. 222, 229, 533 S.E.2d 541, 547 (2000) (emphasis added); see also Bivens v. Cottle, 120 N.C. App. 467, 468, 462 S.E.2d 829, 830 (1995) ("In 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."), 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." N.C. Gen. Stat. 50-13.7(a) (2007).
The Court has held that, once the custody of a minor child is "judicially determined, that order of the court cannot be modified until it is determined that:
(1) there has been a substantial change in circumstances affecting the welfare of the child;
(2) a change in custody is in the best interest of the child." Bivens, 120 N.C. App. at 469, 462 S.E.2d at 831. See also Brewer, 139 N.C. App. at 232, 533 S.E.2d at 548 (holding that a party must first show that "there has been a substantial change of circumstances affecting the welfare of the child" and then, based on the factual situation, may be entitled to the Petersen presumption or will be subject to the "best interest of the child" standard).
"There are no exceptions in North Carolina law to the statutory requirement that a change in circumstances be shown before a custody decree may be modified." Bivens, 120 N.C. App. at 469, 462 S.E.2d at 831.