Articles in the Family Law category - Page 14 of 14

It is not uncommon for persons under 18 to commit acts of domestic violence or need protection from domestic violence. Common questions that arise include:

• Can a minor be a defendant in a 50B proceeding?
• If so, how is the child served and what happens when the child violates the DVPO?
• Can a minor be a plaintiff?
• Does a minor need to be a plaintiff to be protected by a DVPO?

I hear this question frequently. Despite much effort, I have yet to find a case or a statute indicating that a custody order from another state must be registered before it can be enforced or modified. Of course, an action must be initiated to invoke the jurisdiction of our courts; something that can be done with a complaint, service of process and the normal rules of civil procedure. It is clear from UIFSA, Chapter 52C, that support orders from other states must be registered before a North Carolina court can enforce or modify the support order and UIFSA provides a clear statutory procedure for registration. There is no similar statutory requirement for child custody orders.

READ POST "Does a foreign custody order have to be registered before our court can enforce or modify it? (March 6, 2015)"

Since I discussed service members in my recent post about the Servicemembers Civil Relief Act, it’s a good time to review North Carolina’s Uniform Deployed Parents Custody and Visitation Act, GS 50A-350, et. seq, effective since October 1, 2013. The Act is important for military families and for judges struggling to resolve custody issues when a military parent must deploy.

An indigent parent in a child support case is entitled to appointed counsel only for contempt proceedings. But child support cases can be complex. Where should appointed counsel draw the line when representing these parents? Should they limit representation to the actual contempt proceeding or do they delve further? Is the underlying order valid? Is there a good cause to adjust the arrears or is there a change of circumstances justifying a modification of support?  Judges must approve the fee applications for the time spent on cases, so counsel should take care to act within the scope of their representation.

In January we were reminded by the North Carolina Supreme Court in In Re J.B. that:

1) We have military personnel living throughout our state, not just in districts with military facilities, and

2) The federal Servicemember’s Civil Relief Act, 50 U.S.C. app. sec. 501, et. seq., (SCRA) applies to all non-criminal judicial and administrative proceedings involving service personnel, including domestic and juvenile cases.

The Act contains no exception for any civil proceeding. So it covers custody, divorce, support, equitable distribution, 50B and 50C cases, abuse, neglect and dependency proceedings and termination of parental rights.

Incorporating a separation agreement has significant consequences. The contract becomes a court order. Contract remedies are no longer available but the contempt power of the court is. Some provisions become subject to modification, and remarriage and cohabitation will terminate spousal support provisions. Obviously an important decision, parties should think carefully about the pros and cons of incorporation before submitting their contract to the court.

But what if one party wants to incorporate and the other doesn’t? When can or should the court refuse to incorporate?Does it matter that the person objecting agreed to incorporation in the contract itself? What if the plaintiff requests incorporation in the divorce complaint and the defendant fails to file an Answer or show up for the hearing? Can the court incorporate?

READ POST "What’s the Law About Incorporating Separation Agreements? (February 6, 2015)"

Our new guidelines apply to actions heard on or after January 1, 2015.

They reflect the 2014 tax rates, Consumer Price Index and federal poverty level (the new poverty level increased the income level below which a parent qualifies for the self-support reserve). In addition, the Conference of Chief District Court Judges tweaked several substantive provisions. Thanks to Chief Judge Beth Keever, chair of the subcommittee responsible for reviewing the guidelines and making recommendations to the full Conference, for her contribution to this summary of those changes.