On October 1, 2021, two laws went into effect that pertain to parents who test positive for controlled substances while involved in juvenile abuse, neglect, or dependency (A/N/D) proceedings. Together, the laws
Were the constitutional rights of defendants who were prosecuted as adults in criminal court for offenses that they committed at ages 16 or 17, and prior to December 1, 2019, violated because the jurisdictional changes under raise the age were not retroactive? The North Carolina Court of Appeals does not think so. The decision in State v. Garrett, 2021-NCCOA-591, answers this question. Continue Reading
Marital debt is debt incurred during the marriage by either or both spouses for the joint benefit of the parties. Huguelet v. Huguelet, 113 N.C. App. 533 (1994). The party asking that the debt be classified as marital has the burden of proving the value of the debt on the date of separation and that the debt was incurred during the marriage for the joint benefit of the parties. Miller v. Miller, 97 N.C. App. 77 (1990).
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Effective for all incompetency and guardianship proceedings filed after October 1, 2021, S.L. 2021-53 (S 50) created a new statute, G.S. 35A-1121, that enables clerks to authorize a single transaction or protective arrangement—without appointing a guardian. I have received a lot of consults on the new law since it passed. It is not intended to be a magic wand. The law is a tool—one that may prove effective when used in the right situations. To make sure their clients remain protected, GALs need to understand what the law is and is not.
Begin reading this post by standing up.
Remain standing if you have worked in a position that has required you to interact directly and regularly with members of the public during the pandemic. Otherwise, sit down.
Remain standing if this job has required you and your colleagues to (1) apply changing guidance from the state and federal governments regarding residential evictions, (2) perform marriages, (3) stay abreast of changes in criminal law and procedure, and (4) regularly work nights and weekends. Otherwise, sit down.
Continue ReadingA new Juvenile Law Bulletin, Transfer of Juvenile Delinquency Cases to Superior Court, is now available. Transfer is the procedure used to move a case that begins as a delinquency matter under the original jurisdiction of the juvenile court to criminal court for trial as an adult. The Bulletin outlines when transfer is allowed, and sometimes required; the varying procedures to use to transfer a case based on age at offense and the offense charged; procedure to follow once transfer is ordered; the remand process; place of confinement; and issues related to the appeal process. This blog provides some highlights of the information in the Bulletin. Continue Reading
Perhaps it is not surprising that juveniles who experience abuse, neglect, or dependency have a higher risk of suffering from mental health issues. These children have experienced trauma, and when they are removed from their homes and families, they further experience loss, separation, and disruption. The National Conference of State Legislatures reports that “[u[p to 80 percent of children in foster care have significant mental health issues, compared to approximately 18-22 percent of the general population.”* According to the American Academy of Pediatrics, “[m]ental and behavioral health is the largest unmet health need for children and teens in foster care.”**
Continue ReadingConsider the situation where a grandparent or other nonparent files a custody action against a parent. The complaint includes allegations regarding the relationship between the nonparent and the child and includes allegations that the parent has waived their constitutional right to exclusive care, custody and control of the child. In response, the parent files an answer and a motion to dismiss the complaint pursuant to Rule 12(b), arguing that the nonparent does not have standing to seek custody of the child. To determine whether the complaint should be dismissed for plaintiff’s lack of standing, does the court need to conduct an evidentiary hearing to determine whether the parent has waived their constitutional right to custody or is the standing determination made on a review of the complaint alone?
Continue ReadingIt is a new year, and there are new rules for determining the term of office for a district court judge appointed to fill a vacancy.
First, some background. Judicial vacancies are filled by appointment of the governor. This is a constitutional requirement for appellate and superior court judges, see N.C. Const. Art. IV, § 19, and a statutory requirement for the office of district court judge, see N.C. Const. Art. IV, § 10 (providing that vacancies in the office of district court judge are filled for the unexpired term “in a manner prescribed by law”); G.S. 7A-142 (providing for appointment by the governor).
Continue ReadingThis is the last blog post of 2021 and a goodbye to another year of transitions. COVID is still with us, requiring us to be flexible and ever changing as the state of the pandemic hits highs and lows. It has been almost two years of unpredictability. At times, it feels like the state of uncertainty will never end. What will our new normal be? Some changes are here to stay; for example, WebEx hearings (see G.S. 7A-49.6 (S.L. 2021-47)). Others, I hope will be left behind.
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