Articles in the Family Law category - Page 5 of 14

In a recent opinion, the court of appeals held that a trial court has no authority to annul a marriage by summary judgment. Hill v. Durette, (N.C. App, March 19, 2019). This case reminds us that while the Rules of Civil Procedure apply to domestic relations cases generally, there are significant limitations on the use of rules that relieve the court of the obligation to make findings of fact based on evidence presented to the court before entering certain types of domestic orders.

READ POST "Default and Summary Judgment in ‘Divorce’ Cases (May 17, 2019)"

The court of appeals recently reversed a trial court decision that a judgment terminating a mother’s parental rights voided a court order entered five years earlier granting her mother visitation with her grandchild. In Adams v. Langdon, (NC App March 19, 2019), the court of appeals held that the termination of the mother’s rights had no impact on the visitation rights the trial court ordered for grandmother before mother’s rights were terminated.

While there are no doubt numerous ex parte custody orders entered by North Carolina courts daily throughout the state, there is very little appellate guidance regarding the circumstances under which such orders are appropriate and regarding the procedure that should be followed after such an order has been entered. Because these orders are interlocutory and not subject to immediate appeal, we probably never will have much case law to direct us.

READ POST "What the law says about ex parte custody orders (February 15, 2019)"

Pursuant to GS 50-13.4(c1), the North Carolina Conference of Chief District Court Judges recently reviewed the North Carolina Child Support Guidelines. The Chief Judges considered comments and information from judges, attorneys, the North Carolina Administrative Office of the Courts in the form of a report from the national Center for Policy Research, the North Carolina Department of Health and Human Services, the North Carolina Bar Association, and the public during a public hearing held on June 7, 2018. Following this review, the Chief Judges updated the Schedule of Basic Support Obligations to reflect current tax rates, the most recent Consumer Price Index and the current federal poverty level. In addition, the Chief Judges made a few revisions to the substantive provisions of the Guidelines discussed below.

In 2015, I wrote two blog posts summarizing the law relating to the use of contempt to enforce orders to pay support. No Default Judgment in Contempt (May 1, 2015) and Contempt: Establishing Ability to Pay (May 8, 2015). Recent appellate opinions justify revisiting this topic.

READ POST "No Contempt for the Nonpayment of Money Without Actual Evidence of Ability to Pay (December 5, 2018)"

GS 50-13.3 provides that an order for custody is enforced by civil contempt and its disobedience is punished by criminal contempt. This statute mirrors case law regarding contempt; civil contempt is to force present compliance with an order and criminal contempt is to punish a past failure to comply and to discourage future noncompliance.

This distinction between civil and criminal contempt has been described by appellate courts as “murky at best,” and recent cases from the North Carolina Court of Appeals illustrate that contempt can be particularly difficult to apply correctly in custody cases. Most importantly however, these cases indicate that civil contempt probably is not an appropriate remedy for the most common enforcement issues that arise in custody cases.

More than 200 district court judges from districts across North Carolina convened last week for their semiannual conference. Much of the continuing education agenda was dedicated to informing judges about […]

Child custody orders can be modified upon a showing that there has been a substantial change in circumstances affecting the welfare of the child(ren) since the entry of the last custody order and upon a showing that modification is in the best interest of the child(ren). GS 50-13.7; Shipman v. Shipman, 357 NC 471 (2003). Three relatively recent opinions from the court of appeals clarify that the required substantial change does not necessarily need to be the development or occurrence of a new circumstance; the required substantial change can be a change in the way an existing circumstance impacts the welfare of the child(ren).

READ POST "Custody Modification: the effects of the same circumstances can be the changed circumstances (September 27, 2018)"

A couple of years ago, I posted about orders to surrender firearms in Chapter 50B domestic violence protective orders. See https://civil.sog.unc.edu/when-can-the-court-order-surrender-of-firearms-in-a-dvpo/. Earlier this summer, the NC Court of Appeals addressed orders to surrender firearms in Chapter 50C Civil No-Contact Orders. In Russell v. Wofford, (NC App June 19, 2018), the court held that a trial court has “no authority under NCGS Chapter 50C to order defendant not to possess or purchases any firearms, to surrender his firearms, or to revoke his concealed carry permit.”

READ POST "When can the court order surrender of a firearm in a 50C Civil No-Contact Order? (August 16, 2018)"

It is not uncommon for third parties to assert rights or claims against parents litigating child custody and child support. For example, grandparents frequently want the court to grant them visitation rights as part of a custody order resolving a dispute between the child’s mother and father. Similarly, the IV-D child support enforcement agency or a non-parent who has been caring for a child often need to assert rights or claims in child support cases pending between the child’s parents.

Before these people can assert claims or rights in an existing case, they must become parties to the case through the process of intervention.

READ POST "Intervention in Custody and Child Support Cases (May 16, 2018)"