On the Civil Side

A UNC School of Government Blog

https://civil.sog.unc.edu

  • SOG Resources for Civil Defenders

    This entry was contributed by Austine Long on August 2, 2017 at 10:21 am and is filed under Civil Practice.

    In preparation for the upcoming parent attorney and juvenile defender annual conferences, I reviewed the list of resources and information that we provide for defenders. Our main resource is the Indigent Defense Education (IDE) page on the School of Government (SOG) website. It contains a list of upcoming programs and links to manuals and other resources for public defenders and private assigned counsel.

    While speaking with my colleagues and reviewing the SOG site, I realized there are a number of other resources and materials useful for public defenders and private assigned counsel. SOG faculty focus on specific areas of law and work with particular groups of government officials and others who work in that area of law. I decided in this post to share some of the SOG resources outside of IDE that may assist defenders in representing indigent clients in civil cases.

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  • New Legislation regarding Summary Ejectment

    This entry was contributed by Dona Lewandowski on July 28, 2017 at 10:00 am and is filed under Small Claims Law.

    Landlords often encounter a frustrating situation when they file a lawsuit for eviction and past due rent, resulting, ironically, from the interaction of two laws intended to benefit landlords. First, GS 42-29 requires the sheriff to expedite service of process by mailing the tenant the complaints and summons “as soon as practicable.” Within the next five days, and at least two days before the trial, the officer must visit the tenant’s home to attempt personal service. If no one answers the door when the officer knocks, the second special rule for summary ejectment cases kicks in, allowing the officer to simply post the summons and complaint on the door. Such “service by posting” allows the trial to go forward even though the tenant has not been personally served.

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  • Smartphones, YouTube, and criminal contempt

    This entry was contributed by Ann Anderson on July 21, 2017 at 2:39 pm and is filed under Civil Practice, Contempt.

    Earlier this week, a spectator at Bill Cosby’s sexual assault trial was found guilty of contempt of court for posting recordings to YouTube of the closing arguments.  A Pennsylvania trial court judge sentenced the spectator to 50 hours of community service for her actions.  She admitted she violated a court order, but apparently she had been willing to take the risk.  According to ABC News, she “viewed Cosby’s celebrated sexual assault trial as the ‘one time’ she might produce a viral online video.” Pennsylvania courts have some pretty strict rules about recording trials. For this high-profile case in particular, though, the court had also entered a specific decorum order barring any recording or any communication from any device within the courtroom.

    Of course, all this happened in the context of Pennsylvania court rules. So let’s look at whether a smartphone-wielding spectator in a North Carolina trial (civil or criminal) could be subject to a contempt order for similar behavior.  I believe the answer is yes, under the right circumstances. Continue Reading

  • Highlights of 2017 Legislative Changes Impacting Child Welfare Practice

    This entry was contributed by Sara DePasquale on July 19, 2017 at 6:00 am and is filed under Child Welfare Law.

    Since the initial publication of this post, the Governor signed H362. This post was amended on July 31, 2017 to reflect that change and reference the session law.

    The 2017 Legislative Session created and amended various statutes affecting child welfare. Some of those changes are effective now and others will become effective at later dates. This post highlights those amendments that directly impact practice in abuse, neglect, dependency, or termination of parental rights actions. A more complete summary of the numerous legislative changes can be found on the School of Government website, here.  Continue Reading

  • What happens to a custody case when a party dies?

    This entry was contributed by Cheryl Howell on July 14, 2017 at 8:00 am and is filed under Family Law.

    When mom and dad are litigating custody, or when mom and dad have a custody order determining their custody rights with regard to each other, and one of them dies, it is not uncommon for another member of the deceased parent’s family to file a request to intervene in the custody case. Frequently, the motion to intervene is filed by a grandparent who wants to step into the place of the deceased parent and share custody or visitation with the surviving parent.

    Before we even reach the question of whether the court can award custody or visitation to a non-parent against the wishes of the surviving parent, we need to consider the procedural posture of the existing custody case. What is the impact of the death of a party on the pending case? What is the effect of the death on an existing custody order?

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  • Extended YDC Commitments and the 30-Day Notice Requirement

    This entry was contributed by LaToya Powell on July 12, 2017 at 2:14 pm and is filed under Juvenile Justice.

    Beginning at age 10, juveniles may be committed to the Division of Adult Correction and Juvenile Justice for placement in a youth development center (YDC), a locked residential facility that “provide[s] long-term treatment, education, and rehabilitative services” to delinquent youth. G.S. 7B-1501(29). When a district court judge commits a juvenile to a YDC, the judge must determine the maximum period of time the juvenile may remain committed before the Division must either release the juvenile or provide notice under G.S. 7B-2515 of its decision to extend the juvenile’s commitment to continue rehabilitative efforts. This post explains how to determine a juvenile’s maximum commitment period and the requirements for extending the commitment beyond this period.

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  • New Regulations Regarding Contempt in IV-D Child Support Cases

    This entry was contributed by Cheryl Howell on June 30, 2017 at 8:00 am and is filed under Contempt, Family Law.

    Effective January 19, 2017, the federal Department of Health and Human Services (DHHS) adopted a final rule titled “Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs.” 81 Federal Register 93492 (Dec. 20, 2016). This rule mandates numerous changes to the policies and procedures of state child support enforcement programs, but one change of particular importance to state trial courts involves the use of contempt procedures to enforce child support obligations. According to the Comments to the new rules, the change in the federal regulations regarding the use of contempt is intended to ensure that the “constitutional principles articulated in Turner v. Rogers, 564 U.S. 431 (2011)[addressing the rights of obligors in child support contempt proceedings], are carried out in the child support program, that child support case outcomes are just and comport with due process, and that enforcement proceedings are cost-effective and in the best interest of the child.” 81 FR at 93532.

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  • Is it too late to seek Rule 11 sanctions?

    This entry was contributed by Ann Anderson on June 28, 2017 at 12:12 pm and is filed under Civil Practice, Civil Procedure-General, Jurisdiction.

    As every North Carolina litigator should know, Rule 11 of the Rules of Civil Procedure states that, by signing a pleading or “other paper” (motion, subpoena, etc.) related to the litigation, the attorney certifies that,

    to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

    If an opposing party decides that the paper violates one more of these requirements—legal sufficiency, factual sufficiency, or proper purpose—that party can move the court to impose “an appropriate sanction,” which may include attorney fees and other expenses.  Rule 11 does not, however, set a time limit for filing a Rule 11 motion.  So when is it too late?  I have been asked this question (or similar ones) a few times in recent months.  The short answer, of course, is that it depends on the facts.  But  I thought I would share the parameters I have observed from reviewing the case law: Continue Reading

  • More on Protecting Against Elder Abuse

    This entry was contributed by Meredith Smith on June 23, 2017 at 2:30 pm and is filed under Clerks of Superior Court, Guardianship.

    In my previous post, I discussed elder abuse and the court’s role in the protection of adults against such abuse through adult protective services (APS).   An incompetency and guardianship proceeding filed before the clerk of superior court under G.S. Chapter 35A is another mechanism that can be used to protect an older adult from elder abuse when the adult is incompetent.  Guardianship* is markedly different from APS, including the role the adult’s capacity plays in the proceeding, the permanency of the court order, the nature of the authority granted by the court, and who may file for court protection.  These distinctions can have a significant impact on the adult and are important to consider when deciding whether or not to file a guardianship proceeding before the clerk of superior court.

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  • A/N/D Reporting: Rights, Protections, and Prosecutor Review

    This entry was contributed by Sara DePasquale on June 21, 2017 at 6:00 am and is filed under Child Welfare Law.

    Like every other state, North Carolina has a mandated reporting law for child abuse and neglect. North Carolina’s law requires any person or institution with cause to suspect a child is abused, neglected, or dependent by a parent, guardian, custodian, or caretaker to make a report to the county child welfare department (in most counties, DSS) where the child resides or is found. GS 7B-301. What is in a report? Are there protections for the reporter? What are the rights of the reporter? If DSS decides not to initiate a court action, can the reporter challenge that decision? Continue Reading

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