The North Carolina Court of Appeals recently affirmed the trial court order in Madar v. Madar, (Dec. 31, 2020), that required both parents to pay costs associated with their child’s mental health treatment in a residential treatment facility in addition to their basic child support obligation pursuant to the Child Support Guidelines. The court held that the Child Support Guidelines give the trial court the discretion to determine when parents should be ordered to pay such ‘extraordinary expenses’ as part of their child support obligation. Because ordering the payment of extraordinary expenses does not constitute a deviation from the Child Support Guidelines, a trial court is not required to make findings of fact to support its decision that the expenses are reasonable and necessary or that the parties have the ability to pay.
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Emergency Directives Again Renewed; Legislation to Permanently Authorize Remote Hearings Passes Senate
Chief Justice Paul Newby issued an order on Friday, effective today, extending emergency directives currently in place for an additional thirty days to in light of the ongoing COVID-19 pandemic.
The preamble. Chief Justice Newby restated that his ongoing evaluation of the pandemic might result in the expiration or modification of emergency directives, the issuance of new directives, or both. His current plan is to extend the emergency directives that are currently in place until the public health threat posed by the COVID-19 pandemic has subsided. The Chief Justice again reiterated his commitment to the state constitutional requirement that courts be open and that justice be administered without favor, denial, or delay.
Continue ReadingTo Be or Not to Be: How to Know When a Parent Attorney in a TPR Is Provisional Counsel and What That Means for Withdrawing
Consider the common scenario in which a proceeding under Article 11 of G.S. Chapter 7B is filed to terminate a parent’s rights to their child. How and when an attorney is appointed for the respondent parent in a termination of parental rights proceeding (TPR), whether the attorney is provisional or confirmed, and how the attorney may withdraw, depends on a few factors. Ongoing confusion on these points has led to several appeals in recent years, including a new ruling by our Supreme Court. See In re K.M.W., 376 N.C. 195 (2020). This post reviews the governing principles under North Carolina case law and statutes. Continue Reading
Today is GiveUNC Day – A Message from the School’s Dean
Today is the annual GiveUNC day. This year is also the School’s 90th Anniversary! Although the faces have changed over time and the name of our School (from Institute of Government to School of Government) has as well, we have been here – working to support you in your work. If you value the work of the School of Government, which includes our advising, teaching, and publications (that range from books to our many blogs like this one), please consider making a donation today. We would really appreciate your support.
Continue ReadingNC Court of Appeals rules application of grandparent visitation statutes unconstitutional
In an opinion issued on March 16, 2021, the North Carolina Court of Appeals held that a trial court’s award of visitation to paternal grandparents pursuant to North Carolina’s grandparent visitation statutes violated mother’s constitutional right to control with whom her children associate.
Mother and father settled custody by a consent custody order when they divorced. When father became ill a few years later, he began living with his parents and he filed a motion to modify custody. His parents also filed a motion to intervene and filed a claim for visitation pursuant to the grandparent visitation statutes, GS 50-13.2(b1) and 50-13.5(j). The trial court granted the grandparents’ motion to intervene, but father died before the court heard his motion to modify or grandparents’ request for visitation. Following his death, the trial court entered a permanent order granting mother primary physical and legal custody and awarding grandparents extensive visitation rights. Mother appealed.
Continue ReadingEmergency Directives Renewed and Legislation Proposed to Permanently Authorize Remote Proceedings
Chief Justice Paul Newby issued an order on Friday, effective today, extending emergency directives currently in place for an additional thirty days to in light of the ongoing COVID-19 pandemic. Tomorrow marks a full year of altered court operations, as the first set of COVID-19 emergency directives became effective Monday, March 16, 2020.
The preamble. Chief Justice Newby stated that his ongoing evaluation of the pandemic might result in the expiration or modification of emergency directives, the issuance of new directives, or both. His current plan is to extend the emergency directives that are currently in place until the public health threat posed by the COVID-19 pandemic has subsided. The Chief Justice reiterated his commitment to the state constitutional requirement that courts be open and that justice be administered without favor, denial, or delay.
Continue ReadingWhat the N.C. Supreme Court’s Ruling in In re S.M. may mean for Court Reports In Abuse, Neglect, and Dependency Cases
What happens if a court report is distributed to the parties and the court in an abuse, neglect, and dependency case, but the report is never formally offered or admitted into evidence? What if, despite never being admitted into evidence, the court relies on the report in its order? Can a party appeal due to the report never having been admitted? Is there anything a party must do to preserve this issue for appeal? This post will explore the answers to these questions in light of a recent N.C. Supreme Court decision in In re S.M., 375 N.C. 673 (2020).
Continue ReadingA Minor’s Consent to Adoption: Where and in What Proceeding Is It Waived?
North Carolina adoption laws are codified in G.S. Chapter 48. I find it to be one of the more difficult Chapters to navigate because it consists of interrelated Articles and Parts. As you get familiar with the Chapter, the procedures and requirements become less challenging to piece together. It is imperative to know these procedures because “the law governing adoptions in North Carolina is wholly statutory.” Boseman v. Jarrell, 364 N.C. 537, 542 (2010).
Under North Carolina adoption laws, before an adoption of an unemancipated minor may be granted, certain consents must be obtained. See G.S. 48-3-601 through -603. One required consent is from the minor adoptee if they are 12 years old or older. G.S. 48-3-601(1). However, that minor’s consent may be waived when the court issues an order based upon a finding that it is not in the minor’s best interests to require their consent. G.S. 48-3-603(b)(2).
What court has jurisdiction to enter the order waiving the minor adoptee’s consent?
The question is circulating due to some recent North Carolina Supreme Court opinions involving appeals of termination of parental rights (TPR) orders. The facts of the opinions indicate the district court in the TPR action waived the juvenile’s consent to the adoption. The issue of whether the district court in a TPR proceeding has subject matter jurisdiction to waive the juvenile’s consent does not appear to have been raised before or decided by the Supreme Court. Instead, the minor’s waiver of consent is discussed by the Supreme Court in its review of the facts when analyzing a challenge to the district court’s determination that the TPR is in the juvenile’s best interests. The factual summaries in the Supreme Court TPR opinions made me sit up in my chair, take notice, and ask the questions in this post. Continue Reading
Legal Questions Arising from Inclusion of Young Children in Delinquency Jurisdiction
Children in North Carolina can be tried as respondents in delinquency proceedings for their actions beginning at age 6. The inclusion of young children in delinquency jurisdiction, some of whom may be young enough to remain staunch believers in Santa and to eagerly await a visit from the tooth fairy or the Easter bunny, raises significant legal questions in light of their developmental maturity. Those questions include:
- whether the infancy defense should play a role in delinquency proceedings?
- whether the capacity standard used in delinquency proceedings should explicitly account for developmental immaturity?
- at what point do children develop the skills necessary to function as a competent respondent?
A new Juvenile Law Bulletin, Including Young Children in Delinquency Jurisdiction: Issues of Infancy and Capacity, is now available and discusses these issues in-depth. This blog provides some highlights of the bulletin. Continue Reading
Prospective Child Support: What is it and how is the amount determined?
In the post “Retroactive Support: What is it and how is the amount determined”, I wrote that the law defines retroactive support as support due for the time before a complaint or motion seeking support is filed, Briggs v. Greer, 136 NC App 294 (2000), and that the amount of retroactive support owed by an obligor can be determined based either on the Child Support Guidelines or on the parent’s share of actual expense incurred on behalf of the child during a period of time in the past. NC Child Support Guidelines, March 1, 2020, p. 2.
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