The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) is a set of uniform laws adopted by every state but Massachusetts*. One key purpose of the UCCJEA is to “provide a uniform set of jurisdictional rules and guidelines for the national enforcement of child custody orders.” In re J.W.S., 194 N.C. App. 439, 446 (2008) (emphasis added); see GS 50A-101 Official Comment. The UCCJEA defines when a court has subject matter jurisdiction of a child custody proceeding, which includes abuse, neglect, and dependency actions (A/N/D). See GS 50A-102(4). In North Carolina, the UCCJEA is found at GS Chapter 50A. Under the UCCJEA, there are different types of jurisdiction: initial (the first custody order concerning a child), modification (when there is a previously issued order), and temporary emergency jurisdiction. GS 50A-201 through -204. The focus of this post is temporary emergency jurisdiction. Continue Reading
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A Juvenile’s Request for a Parent During Custodial Interrogation Must Be Unambiguous
In December, the North Carolina Supreme Court filed its long-awaited opinion in State v. Saldierna, __ N.C. __, 794 S.E.2d 474 (December 21, 2016), a juvenile interrogation case heard by the court on February 16, 2016. This decision marks the first time the court has addressed the rights of a juvenile during a custodial interrogation since J.D.B. v. North Carolina, 564 U.S. 261 (2011), the landmark U.S. Supreme Court case which made age a relevant factor in the Miranda custody test (and reversed the state supreme court on this issue). Saldierna did not directly involve whether the juvenile was in police custody, since he was clearly under arrest. The issue, instead, was whether a juvenile must make a clear and unambiguous request in order to exercise the juvenile’s statutory right to have a parent present during a custodial interrogation. The Supreme Court said yes, reversing the Court of Appeals on this question. This post discusses whether the ruling can be reconciled with J.D.B. and Juvenile Code statutes governing custodial interrogations. Continue Reading
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Equitable Distribution: Change in Federal Law Regarding Military Pensions Part 1
Before 1981, military pensions were not subject to division by state courts in marital dissolution proceedings. However, Congress enacted the Uniformed Services Former Spouses Protection Act (USFSPA) to provide that, for pay periods after July 25, 1981, “disposable retired pay” of military personal is subject to division by a state court in a divorce proceeding. 10 USC 1408(c)(1). Effective December 23, 2016, Congress has changed the definition of “disposable retired pay” as it relates to property distribution upon divorce in a way that has left family law practitioners and judges across the country struggling to quickly determine how to reconcile existing state law with the new federal definition. In this blog post, I will try to explain the change as it relates to North Carolina equitable distribution law. In my next post, I will discuss some issues and questions arising from the change.
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Action to Renew a Judgment – But Not Really
Many small claims magistrates hold court for years before encountering an action to renew a judgment, but when they do, they are often uncertain about it – and for good reason! North Carolina trial courts as well as appellate courts have stumbled over the nature of this unique claim for relief.
To understand this action, we have to back up ten years, to a plaintiff who goes to court [Lawsuit #1], wins the case, and obtains a money judgment [Judgment #1] against the defendant. Once that judgment has been entered, the plaintiff has ten years to try to collect it through the usual enforcement procedures available through the Clerk’s and Sheriff’s offices. GS 1-234.
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It’s Complicated: Venue vs Jurisdiction in A/N/D and TPR Actions
Within North Carolina, the appropriate location of a district court where an abuse neglect or dependency (A/N/D) action is filed is a matter of venue. GS 7B-400. And the appropriate location of the district court where a termination of parental rights (TPR) action is filed is a matter of jurisdiction. GS 7B-1101. Why are they different? Because the statutes governing A/N/D and TPR proceedings have different requirements and impose different limitations on the parties and the court.
The General Assembly has the power to “fix and circumscribe the jurisdiction of the courts,” which can require certain procedures. In re T.R.P., 360 N.C. 588, 590 (2006). A/N/D and TPR cases are statutory in nature and set forth specific requirements that must be followed. Id. In an A/N/D or TPR action, the first place to look is the Juvenile Code (GS Chapter 7B) because it establishes both the procedures and substantive law for these types of juvenile proceedings. See GS 7B-100; -1100. Continue Reading
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Child Custody Order Cannot Tell a Parent Where to Live
Many appellate opinions explain that judges are vested with wide discretion in matters concerning child custody. G.S. 50-13.2(a) gives the court broad authority to allocate physical and legal custody of a child as the court believes will “best promote the interest and welfare of the child” and GS 50-13.2(b) allows the court to include in any custody order “such terms, including visitation, as will best promote the interest and welfare of the child”. Recently, however, the North Carolina Court of Appeals made it clear that there are limits on the court’s authority in custody cases. In Kanellos v. Kanellos, 795 S.E.2d 225 (N.C. App., 2016), the court reminded us that custody cases are primarily about determining who has physical care and control of a child and who has decision-making authority regarding a child and not as much about controlling the details of the lives of the child or the parties.
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Some Q&A on UAGPPJA
More than two months have passed since the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) went into effect in North Carolina. I’ve blogged about this topic a couple of times before. If you are just tuning in to this new law, you can read more about UAGPPJA here and here. I’d like to use the post today to go through some questions I’ve received since the December 1, 2016 effective date. The questions are divided up according to the three main areas of the law: initial filings, transfer, and registration. The stories you are about to read are true; names have been changed to protect the innocent.*
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Service by Publication When Defendant is in Another Country
It is increasingly common that domestic relations cases in North Carolina involve defendants who reside outside of the United States. In child custody cases, especially cases that include a request for findings related to Special Immigrant Juvenile Status, it is increasingly common for plaintiff to allege that although she knows defendant lives in another country, she has been unable to find the actual location of defendant in that foreign country. Rule 4(j2) of the Rules of Civil Procedure allows service by publication when after using appropriate due diligence to locate a defendant, plaintiff is unable to find an address to use for personal service. Notice of service must be published in the area where plaintiff believes defendant to be located. If there is no “reliable information” as to defendant’s location, notice can be published in the area where the action is pending.
Does this same rule apply when defendant is known to be in another country?
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N.C. Court of Appeals: Disposition Orders Do Not Require Written Findings on the G.S. 7B-2501(c) Factors
In multiple cases, the Court of Appeals has found reversible error when a trial court has entered a disposition in a delinquency case without including written findings on the factors set out in G.S. 7B-2501(c). The number and frequency of reversals on this ground has even caused the State to concede error on appeal. See, e.g., In re V.M., 211 N.C. App. 389, 391 (2011). Yesterday, the court surprisingly changed course in a published decision, In re D.E.P., __ N.C. App. __ (Feb. 7, 2017), which held that the Juvenile Code does not require the trial court to “make findings of fact that expressly track[] each of the statutory factors listed in [G.S.] 7B-2501(c).” The decision raises some obvious questions. Can one panel of the Court of Appeals overrule another on the same issue? And, how will future cases be impacted? Continue Reading
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Doctors, Patients, and Arbitration Agreements: The NC Supreme Court’s Ruling in King v. Bryant
Last Friday the North Carolina Supreme Court issued an opinion that should prick up the ears of any physician, hospital, or healthcare facility that asks its patients to agree to binding arbitration in the event of a dispute. In King v. Bryant (January 27, 2017), the court’s majority held that a physician was in a fiduciary relationship with a new patient at the time the patient signed an arbitration agreement at his initial intake. The majority then concluded that, because the physician’s office did not take sufficient measures to disclose the nature and import of the agreement, but instead effectively buried it among other intake papers, the agreement was the product of breach of that fiduciary duty.
Background. The procedural history of the case is complex, but here are the essential facts and lower-court findings that led to the ruling:
In 2009, Mr. King was referred to a surgeon, Dr. Bryant, for a hernia repair. While Mr. King was in the waiting area before meeting Dr. Bryant for the first time, the desk employee asked him to complete forms seeking his medical history and to sign several documents, among which was an arbitration agreement. This was the routine practice in the office for new patient intake. After meeting with Dr. Bryant, Mr. King signed another series of health-related and insurance forms. Believing all the documents to be “just a formality,” he did not read them before signing. During the surgery, Dr. Bryant injured Mr. King’s distal abdominal aorta, requiring substantial additional hospital treatment and causing significant injury to Mr. King’s right leg and foot. Mr. King filed a medical malpractice action about two years later. Continue Reading