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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?

READ POST "What happens to a custody case when a party dies? (July 14, 2017)"

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.

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.

READ POST "New Regulations Regarding Contempt in IV-D Child Support Cases (June 30, 2017)"

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:

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.

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?

More on Law Enforcement Involvement in Custody Cases In my earlier blog post, Ordering Law Enforcement Officers to Enforce a Child Custody Order, Jan. 15, 2016, I discussed North Carolina […]

The United Nations declared tomorrow as World Elder Abuse Awareness Day.  In North Carolina, Governor Cooper declared the time period spanning from Mother’s Day to Father’s Day Vulnerable Adult and […]

N.C. Gen. Stat. 50-16.9(b) provides that “if a dependent spouse who is receiving postseparation support or alimony from a supporting spouse … engages in cohabitation, the postseparation support or alimony shall terminate.” In Setzler v. Setzler, 781 SE2d 64 (NC App., 2015), the court stated that “the primary intent in making cohabitation grounds for termination of alimony was to evaluate the economic impact of a relationship on a dependent spouse and, consequently, avoid bad faith receipts of alimony;” bad faith meaning a dependent spouse avoiding remarriage for the sole purpose of continuing to receive alimony. So if the relationship is such that one would expect the parties to be married, the assumption is the only reason they are not married is the desire to avoid the termination of alimony. For more on defining cohabitation, see my earlier post Alimony: Cohabitation is All About Money After All.

Cohabitation clearly terminates an award of support. What if the dependent spouse is cohabitating or has cohabitated at the time she or he is asking the court for an award of postseparation support or alimony? Is cohabitation a defense to the establishment of a support obligation? Does it matter whether the dependent spouse still is cohabitating at the time of the support request?

READ POST "Cohabitation is a Defense to Alimony (June 9, 2017)"

Update: On June 5, 2017, the NC Supreme Court allowed the state’s motion for a temporary stay of the Court of Appeals’ opinion in T.K., which indicates that further appellate […]