A trust is a fiduciary relationship in which the trustee holds a property interest subject to an equitable obligation to manage or use that property for the benefit of a beneficiary. Unlike other common fiduciary relationships, a trust is not generally under continuing judicial oversight. The court may intervene in the administration of a trust to the extent its jurisdiction is invoked by a party or as provided by law. A trust may be in effect for years before an issue arises that necessitates judicial action. When a court proceeding is filed related to the trust, the court may have little familiarity with the trustee, the trust, or the trust administration. Once the court resolves the matter or dispute brought before it, the trustee typically resumes administering the trust without further court oversight.
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Custody jurisdiction: When is an absence from the home state a ‘temporary absence’?
Most people familiar with the law relating to child custody are familiar with the definition of the ‘home state’ of a child and the importance of the home state when determining whether a state has subject matter jurisdiction to make a child custody determination.
G.S. 50A-102(7) states:
“Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. … A period of temporary absence of any of the mentioned persons is part of that period.” [emphasis added]
When an 11-year-old child has lived in North Carolina with her parents for her entire life but traveled to Myrtle Beach with her mother for a two-week beach vacation, it seems obvious that North Carolina will continue to be the home state of the child when mother files a custody action in North Carolina one month after she and the child return from the beach trip. The two-week period when the child was not in North Carolina clearly was a temporary absence, meaning the two weeks out of the state is “part of” the six months immediately before the commencement of the child-custody proceeding.
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What Does It Mean to Invoke the Judgment of the Court? The Supreme Court Clarifies General Appearances
Our justice system depends on due process: the idea that legal proceedings follow established rules and individuals are protected from arbitrary acts of the government. One kind of due process, commonly called procedural due process, is guaranteed by the Fifth and Fourteenth Amendments and means that parties to judicial proceedings must have notice and an opportunity to be heard. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
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New Citizen Review Panels for North Carolina’s Child Welfare System
I wrote recently about substantial upcoming changes to North Carolina’s child fatality prevention system. As part of those systemic changes in S.L. 2023-124, the General Assembly is establishing new Citizen Review Panels to evaluate the extent to which the state is fulfilling its child protection responsibilities in accordance with federal child welfare laws. This change aligns North Carolina with requirements in the Child Abuse Prevention and Treatment Act (CAPTA), the core federal legislation that authorizes funding to states for preventing and responding to child abuse and neglect. This post will discuss the structure and authority of these new citizen panels, as well as how their work intersects with local teams engaged in multidisciplinary child fatality reviews.
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Returning Juveniles with Pending Delinquency Matters in Other States Under the Interstate Compact for Juveniles
The Interstate Compact for Juveniles (ICJ) is a binding compact that establishes the law that governs the interstate movement of juveniles who are involved in the juvenile justice system. One of the purposes of the ICJ is to “[r]eturn juveniles who have… been accused of an offense to the state requesting their return.” G.S. 7B-4001(b)(3). This is akin to the extradition process used in criminal matters. The proper procedure to return a juvenile who is accused of an act of delinquency in another state to that other state is found in the ICJ rules. This post walks through the procedure. Continue Reading
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SUPPORT the SCHOOL OF GOVERNMENT TODAY!
For 94 years, the UNC School of Government has been the backbone of support for North Carolina’s public officials, from clerks and judges to budget analysts, municipal and county managers, newly elected officials, public defenders, and prosecutors. From Murphy to Manteo, we are here to ensure that those who serve our communities have the resources, training, and guidance they need to succeed. Today we are asking for your help to continue furthering this mission. Please watch this message from our Dean or read on to learn how you can be a spark in this effort. Continue Reading
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Fault Lines: Understanding Negligence Doctrines
North Carolina is one of a handful of jurisdictions that still follow the contributory negligence rule. In states where contributory negligence applies, if the plaintiff is even slightly at fault for their injuries or damages, they cannot receive compensation from the defendant. Most states follow some form of comparative negligence which allocates fault among the parties in an action for negligence. Due to the harsh effects of the contributory negligence rule on plaintiffs, certain doctrines exist to mitigate these effects and allow for recovery. Recent North Carolina appellate decisions have addressed these and other negligence doctrines. This post will explore how these doctrines work by reviewing the details of this recent precedent.
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Renewal of A Domestic Violence Protective Order
G.S. 50B-3(b) provides that, if requested to do so before a current domestic violence protective order (DVPO) expires, the trial court can renew the order for good cause for an additional fixed term, not to exceed two years, even if the current order has previously been renewed. All provisions in the protective order can be renewed, except temporary custody provisions cannot exceed one year in total duration. G.S. 50B-3(a1)(4). While a plaintiff must be a resident of North Carolina to request a DVPO, GS 50B-2, the plaintiff does not need to continue to reside in North Carolina to request that the DVPO be renewed. Comstock v. Comstock, 244 N.C. App. 20 (2015).
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New Juvenile Capacity Law: Court Forms and Forensic Evaluators
Beginning with offenses committed on or after January 1, 2025, new laws are in effect regarding the standard and procedures for addressing juvenile capacity to proceed. The new statutes can be found in G.S. 7B-2401-2401.5. You can find blogs about the details of the new standard and procedures here and here. This major revision to the law of juvenile capacity to proceed required new court forms and a new process for credentialing juvenile forensic evaluators. This post details those new structures. Continue Reading
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Big Changes Coming to North Carolina’s Child Fatality Prevention System
Tragically, 1,474 North Carolina children under the age of 18 died in 2022. According to the North Carolina Child Fatality Task Force’s 2024 Annual Report, the rate of child deaths in 2022 was 64.2 per 100,000 children—the highest rate recorded in the state since 2009. North Carolina will soon undergo a substantial restructuring of its statewide child fatality prevention system, including changes to how child fatalities and active child protective services cases are reviewed at the local level. The statutory changes to the system’s structure, many of which will become effective on July 1, 2025, were part of the 2023 Appropriations Act (S.L. 2023-134), as later amended by S.L. 2024-1 and S.L. 2024-57. The goal of these changes was to “eliminate the silos and redundancy that exist within the current system,” while also seeking to strengthen the system’s effectiveness in preventing child abuse, neglect, and death. Read on to learn more about the new system.
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