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A guardian of the estate for any unemancipated minor may be appointed under G.S. Chapter 35A to receive and administer property on the minor’s behalf. G.S. 35A-1221; G.S. 35A-1251; G.S. […]
Last week the Court of Appeals breathed new life into a decades-old law that requires district courts to refer juveniles who have been adjudicated delinquent, prior to disposition, to the area mental health, developmental disabilities, and substance abuse services director for an interdisciplinary evaluation if any evidence that the juvenile is mentally ill has been presented. This new decision, In the Matter of E.M., __ N.C.App. __ (January 15, 2019), raises many questions like, does it really mean any evidence of mental illness? And does it matter if the juvenile has already received mental health services? And who is the area mental health, developmental disabilities, and substance abuse services director anyways?
In December, the School of Government held the first week of orientation for new district court judges. The class included thirty-one new judges. Most of the judges took the bench […]
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.
Dispositional decision making in delinquency cases can be complex. A list of 24 dispositional alternatives are available pursuant to G.S. 7B-2506. The choice among them must be driven by the disposition level allowed by G.S. 7B-2508 and the five factors outlined in G.S. 7B-2501(c). How much information must a court consider in making this decision and what findings need to be in an order of disposition? That question was not clearly answered until May of 2018.
In 2014 the story of a California family and a live-in nanny who refused to leave after her employment ended made international news –- including Dr. Phil! According to media accounts, the parties agreed that the nanny would provide childcare and light housekeeping in exchange for room and board. An argument ensued as to whether the nanny was performing her duties as originally agreed, and her employment was terminated. When the nanny retired to her bedroom rather than vacating the property, the situation deteriorated further. Law enforcement refused to intervene, saying the dispute was “a civil matter.” Eventually the nanny voluntarily moved out. One media account commented, “Even though the nanny is gone, [one of the family members] says she still casts a long dark shadow in her home, saying, ‘As far as I see it, she’s, in a way, like a vampire and she hasn’t yet drained us.’”
To end the week, I’ll point out three recent Court of Appeals opinions that remind us that a Rule 59 (“new trial”) motion will not toll an appeal period if the motion does not actually seek proper Rule 59 relief. If, for example, the motion does not provide proper notice of the grounds for relief, or if it is being used merely as a general “motion for reconsideration,” it may not be considered “proper.” As I’ve discussed in previous posts (here and here), North Carolina Rule of Civil Procedure 59 permits a trial judge to order a new trial (or, through Rule 59(e), amendment of judgment) for a number of reasons, including prejudicial irregularity, jury misconduct, newly-discovered evidence, insufficient evidence to justify the verdict, prejudicial error of law, and other bases. A proper Rule 59 motion tolls the period for appeal of the underlying judgment. N.C. R. App. P. 3(c)(3); G.S. 1-279.1. But if a court determines that Rule 59 was not the appropriate vehicle for remedy sought, the appeal period will not have been tolled. These three recent published opinions are our newest examples of this outcome:
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.
I am planning two conferences for civil defenders that will be held at the School of Government (SOG). The Guardianship Proceedings for Appointed Counsel conference is scheduled for January 24, 2019 and the Civil Commitment Conference is the following day on January 25, 2019. Currently they are held bi-annually in odd years.