An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in 

accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of 

Appellate Procedur e .

NO. COA13-803

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

JOHN T. MOORE, JR.,

Plaintiff,

v. Henderson County

No. 05 CVD 2007

SUSAN J. MOORE,

Defendant.

Appeal by defendant from order entered 19 March 2013 by 

Judge Mack Brittain in Henderson County District Court. Heard 

in the Court of Appeals 10 December 2013.

PRINCE, YOUNGBLOOD & MASSAGEE, PLLC, by Boyd B. Massagee, 

Jr., for plaintiff.

Donald H. Barton, for defendant.

ELMORE, Judge.

On 4 February 2013, Susan J. Moore (defendant) filed a 

motion for change of custody, praying the trial court to enter 

an order granting her visitation with her minor children. In 

response, John T. Moore, Jr. (plaintiff) filed a motion to 

dismiss pursuant to N.C.R. Civ. P. 12(b)(6). On 19 March 2013, 
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Judge Mack Brittain granted plaintiff’s motion and dismissed the 

action, concluding as a matter of law that 1) he was without 

authority to modify the 28 June Order, and 2) that plaintiff 

failed to allege in her motion for modification a substantial 

change in circumstances sufficient to warrant modification of 

the Order. Defendant now appeals. After careful consideration, 

we reverse the trial court’s order and remand for further action 

consistent with this opinion.

I. Factual Background

The parties to this action were married on 14 July 2001 and 

separated on 30 June 2012. Two children were born of the 

marriage, the first in 2002 and the second in 2004. Plaintiff 

initiated this action in 2005 seeking, inter alia, custody of 

the children under Chapter 50 of the North Carolina General 

Statutes.

The parties entered into their most recent child custody 

consent order (the Order) on 28 June 2012, and it is the terms 

of this Order that are relevant to this appeal. The Order 

placed the minor children in the permanent sole custody of

plaintiff with the marital home sequestered for the benefit of 

plaintiff and the children. The Order does not include any 

findings of fact as to whether granting defendant visitation 
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would be in the children’s best interests. In fact, it is 

completely silent on the issue of visitation. Defendant 

reviewed the terms and thereafter signed the Order pro se. 

On 9 August 2012, defendant, through counsel, filed a Rule 

60(b) motion to set aside the Order, alleging duress and undue 

influence. On 11 October 2012, the trial court denied the 

motion, concluding that defendant’s poor life choices, not any 

improper action by plaintiff, led to the issuance of the Order.

Defendant neither timely appealed the entry of the June 2012 

custody Order nor the trial court’s denial of her Rule 60(b) 

motion. 

II. Motion for Change of Custody

Defendant argues that the trial court erred in dismissing

her motion for modification of custody. Specifically, she 

contends that, on its face, her motion alleged a substantial 

change in circumstances sufficient to allow for a hearing on the 

merits. We agree that the trial court erred; however, we reject 

defendant’s argument. The dispositive question before us is 

whether the Order on which defendant’s motion for modification 

of custody rests is permanent or temporary. 

We have classified custody orders as being either 

“temporary” or “permanent.” However, the term “permanent” is
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slightly misleading, because “[a]fter an initial custody 

determination, the trial court retains jurisdiction of the issue 

of custody until the death of one of the parties or the 

emancipation of the youngest child.” McIntyre v. McIntyre, 341 

N.C. 629, 633, 461 S.E.2d 745, 748 (1995). “[W]hether an order 

is temporary or permanent in nature is a question of law, 

reviewed on appeal de novo.” Smith v. Barbour, 195 N.C. App. 

244, 249, 671 S.E.2d 578, 582 disc. review denied, 363 N.C. 375, 

678 S.E.2d 670 (2009) (emphasis added). “The same standards 

that apply to changes in custody determinations are also applied 

to changes in visitation determinations.” Simmons v. Arriola, 

160 N.C. App. 671, 674, 586 S.E.2d 809, 811 (2003). 

Permanent child custody orders can only be modified if the 

trial court finds there has been a substantial change in 

circumstances affecting the welfare of the child and that the 

modification is in the child’s best interests. Woodring v. 

Woodring, ___, N.C. App. ___, ___, 745 S.E.2d 13, 18 (2013).

Alternatively, a temporary order may be modified solely upon the 

trial court finding that such proposed modification is in the

“best interests of the child.” Arriola, 160 N.C. App. at 674, 

586 S.E.2d at 811. Thus, the party moving for modification of a 
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temporary order need not allege a “substantial change in 

circumstances.” Id. at 674, 586 S.E.2d at 811.

An order is temporary if it either (1) states a “clear and 

specific reconvening time” that is reasonably close in proximity 

to the date of the order; or (2) does not determine all the 

issues pertinent to the custody or visitation determination. 

Brewer v. Brewer, 139 N.C. App. 222, 228, 533 S.E.2d 541, 546 

(2000). Temporary orders may become permanent by operation of 

time. Anderson v. Lackey, 163 N.C. App. 246, 254–55, 593 S.E.2d 

87, 92 (2004). However, “a temporary custody order that does 

not set an ongoing visitation schedule cannot become permanent 

by operation of time.” Woodring, ___ N.C. App. at ___, 745 

S.E.2d at 19 (emphasis added). 

The granting of visitation rights is a judicial function 

which may not be delegated to the custodial parent. In re 

Custody of Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 

(1971). Accordingly, we charge the trial court with safeguarding 

“[t]he feasible exercise of a parent’s right of visitation” by 

including “a definite provision [for visitation] in the order or 

decree of the court awarding the custody of the child to another 

person.” Id. at 550, 179 S.E.2d at 848; see also Brewington v. 

Serrato, 77 N.C. App. 726, 733, 336 S.E.2d 444, 449 (1985)
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(concluding that a general provision permitting visitation “at 

such times as the parties may agree” cannot be sustained because 

it “effectively gives plaintiff the exclusive power to deny 

defendant reasonable visitation with the child by withholding 

his consent”); Arriola, supra, (finding that the parties’ 

initial custody order was not final because it failed to specify 

visitation periods). 

In this case, the trial court did not include a visitation

provision in the Order and, therefore, it has not determined all

of the issues. As such, the Order has remained temporary, 

making the applicable standard of review the “best interests of 

the child” standard, not a “substantial change in circumstances” 

standard. Arriola, supra. Accordingly, defendant was only 

required to allege that it was in the children’s best interests

to modify the Order to provide for visitation. She did so in 

paragraph 3 of her motion: she “has a suitable home for the 

minor children and it would be in the best interest[s] of the 

minor children that they have visitation with their mother. 

Defendant is a fit and proper person to have visitation with the 

minor children.”

Contrary to Judge Brittain’s conclusion, the trial court 

does, in fact, have authority to modify the Order. See Arriola, 
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160 N.C. App. at 676, 586 S.E.2d at 812 (holding the district 

court did not err in applying the “best interests of the child” 

standard, instead of the “substantial change in circumstances” 

standard, and in modifying the provisions of the temporary child 

custody consent order). We remand this case to the District 

Court of Henderson County with instructions to conduct a hearing 

and enter an order specifying reasonable visitation. Serrato, 

77 N.C. App. At 733, 336 S.E.2d at 449 (remanding to district 

court for modification of a temporary child custody order upon 

concluding that “it was the duty of the trial judge to safeguard 

defendant’s right to visitation by including a provision in the 

order specifying visitation periods”). The trial court shall 

utilize the “best interests of the child” standard to establish

reasonable visitation. Again, barring extraordinary 

circumstances, a parent should not be denied the right of 

visitation. However, if the trial court determines that 

defendant should be denied reasonable visitation, the written 

order shall include findings of fact specifying that defendant 

is unfit to visit the children or that granting visitation 

rights would not be in the children’s best interests. N.C. Gen.

Stat. § 50–13.5(i) (2013).

III. Conclusion
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For the abovementioned reasons, the trial court erred in 

dismissing plaintiff’s action. The Order is a temporary child 

custody order subject to modification by the trial court upon 

finding that the proposed modification is in the children’s best 

interests. Accordingly, we reverse and remand to the trial 

court for further action consistent with this opinion.

Reversed and remanded.

Judges McGEE and HUNTER concur.

Report per Rule 30(e).