To legally carry a concealed handgun in North Carolina, a person must receive a permit from the county sheriff. When considering an application for a permit, the sheriff is required to apply the criteria set out in G.S. 14-415.12. Among other requirements, the applicant must be at least 21, must be a citizen or lawful permanent resident of the U.S., and must have successfully completed an approved firearms training course. Several other factors also prevent the sheriff from issuing a permit to an applicant, such as the applicant’s ineligibility to possess a firearm under Federal law, conviction of a felony, adjudication of mental illness, or discharge from the military under less than honorable conditions. Also, quite sensibly, one of the requirements for issuing a permit is that the applicant “does not suffer from a physical or mental infirmity that prevents the safe handling of a handgun.” If none of the statutory restrictions applies, and the applicant otherwise meets all of the criteria, the sheriff “shall” issue the permit. G.S. 14-415.12.
Continue Reading-
-
Intervention in Custody and Child Support Cases
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.
-
More on Gifting Authority under the North Carolina Uniform Power of Attorney Act
I previously wrote about an agent’s authority to make gifts under the new North Carolina Uniform Power of Attorney Act (NCUPOAA) that went into effect in North Carolina on January 1, 2018. There are two additional points to keep in mind if you are an agent, a third party, or a court examining the agent’s authority granted by the principal to make gifts under a POA. Continue Reading
-
And Now a Two-Step: Eliminating Reunification as a Permanent Plan in an A/N/D Proceeding
Since this post was published, the NC General Assembly enacted S.L. 2019-33, effective Oct. 1, 2019. Amendments include removal of the words “remain” and “subsequent” in the statutes addressing permanency planning.
First came the cease reunification efforts shuffle resulting from 2015−2017 statutory changes to the NC Juvenile Code and published appellate decisions interpreting those changes (see my last blog post, here). And now, In re C.P., ___ N.C. App. ___ (March 6, 2018) has created the elimination of reunification as a permanent plan two-step. Continue Reading
-
Don’t Try This at Home: Self-Help Evictions
A magistrate once told me that the advice given to members of the public by many law enforcement officers and courthouse personnel may be summarized as ATM: Ask the Magistrate. The locations of magistrates’ offices, unlike those of judges, are known to the public, and their doors are — if not actually open – at least accessible. Their telephone numbers are publicized, and when the public calls, that call will be answered by a magistrate. So it’s not surprising that magistrates spend a significant amount of time interacting with citizens seeking legal assistance, walking that fine line between helpfully providing legal information and carefully refraining from giving legal advice. While the questions a magistrate may be asked on any given day are likely to vary over a truly amazing range of topics, there are a few subjects that come up all the time. One of them – the subject of this post – has to do with whether and under what circumstances a landlord may lawfully force a tenant to vacate rental premises—a practice commonly referred to as self-help eviction. Continue Reading
-
Pleading med mal: Rule 9(j), res ipsa loquitur, and a new Court of Appeals opinion
Rule 9(j)’s special pleading requirement
Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation not required in other types of negligence suits. The plaintiff must allege that the medical care and records have been reviewed by an expert who meets certain qualifications and who is willing to testify that there was a breach of the standard of care. The rule is very strict, and if a plaintiff fails to include the Rule 9(j) language before the underlying statute of limitations expires, the complaint “shall be dismissed.” See, e.g., Vaughan v. Mashburn, 795 S.E.2d 781 (N.C. App. 2016) (acknowledging the harshness of the result).
Continue Reading -
Separation and Property Settlement Agreements: When does breach by one party excuse performance by the other?
Father files a complaint alleging mother breached terms of an agreement by not paying alimony and child support. Mother admits she has not paid but argues that she should not have to pay because dad consistently has failed to comply with the custody provisions of the agreement by refusing to allow her to see the children and has repeatedly violated a provision in the agreement that he would not harass her.
Can father enforce the contract against mother if mother proves he also breached the contract? Does his breach excuse mother’s performance? Continue Reading
-
GiveUNC: A Message from the Dean
Today is the UNCGive Campaign. Please consider making a donation in support of the work we at the School of Government do (for example, this blog). Below is a message from our Dean.
Whether you attended classes at the UNC School of Government, consulted with our faculty, or used our books and blogs—we exist because of you.
Continue Reading -
Social Services Working Group
[This post is co-authored with my colleague, Margaret Henderson]. It was originally posted on the Coates’ Canons: NC Local Government Law blog on March 29, 2018 but is relevant to readers of On the Civil Side as well.
In 2017, the North Carolina General Assembly established the Social Services Regional Supervision and Collaboration Working Group (SSWG) and directed it to develop recommendations related to the social services system (see legislative summary here). The legislation directed the UNC School of Government to convene the group, facilitate the meetings, and provide staff support to the project.
The SSWG’s work is divided into two stages. The group just released the final report for Stage One and is scheduled to present its recommendations to the legislature on April 10, 2018. Stage Two will get underway in May. All of the meeting materials, minutes, and recordings are available online.
There have been quite a few different conversations about social services system reform over the last year or so. As a result, there has been some confusion about the role of the SSWG. This blog post is intended to shed some light on the group’s charge and connect some dots between the work of the SSWG and other elements of system reform that are underway. Continue Reading
-
Third Party Refusals to Accept a Power of Attorney under the New North Carolina Uniform Power of Attorney Act
Mary signs a power of attorney (POA) appointing her son, Frank, as her agent authorized to act on her behalf. The POA is acknowledged by a notary public and states that the agent has the authority to do all acts that the principal could do. The POA is effective immediately and durable by default under the new North Carolina Uniform Power of Attorney Act (NCPOAA) effective January 1, 2018. S.L. 2017-153 (S569) (not applicable to health care POAs or consent to health care for a minor under G.S. Chapter 32A).
Months later, Mary suffers a massive stroke and is no longer able to manage her property or business affairs because she is unable to make or communicate decisions. Frank retrieves the original POA from Mary’s safe and takes it to the bank and attempts to withdraw money from Mary’s checking account to pay some of her bills. The bank refuses to accept the POA and conduct the transaction. A friend of Frank’s notes he had a similar problem with his father’s POA. He had to ultimately seek court-ordered guardianship of his father to be able to conduct the necessary transactions on his father’s behalf because of the bank’s refusal to accept the POA. Is Frank stuck because of the bank’s refusal? Must he obtain guardianship to be able to carry out his duties under the POA on behalf of Mary?