On the Civil Side

A UNC School of Government Blog

https://civil.sog.unc.edu

  • Check Out Episode 2, “The System Responds,” of Beyond the Bench Season 2

    This entry was contributed by Sara DePasquale on November 18, 2016 at 6:00 am and is filed under Child Welfare Law.

    Episode 2, “The System Responds”, for our Beyond the Bench Season 2 podcast is available now! This episode picks up where the last episode ended, with two different reports of suspected child neglect being made to a county child welfare agency. The reports are based on family homelessness and other issues that are occurring in the children’s homes.

    This episode is organized into two parts.

    • In Part One, you will learn about how the county department responds to reports of suspected neglect through the screening in/out process, what is involved in a department’s assessment of a report, and what safety planning looks like.
    • In Part Two, you will learn about when court action is required, how it is started, and what is involved in obtaining an emergency order that removes the children from their homes.

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  • Is Service by Posting Available in Non-Residential Leases?

    This entry was contributed by Dona Lewandowski on November 16, 2016 at 5:14 pm and is filed under Small Claims Law.

    North Carolina small claims magistrates across the state report that most summary ejectment actions are served by posting, and that’s not surprising. GS 42-29, the statute establishing the procedure for service of process in such cases, establishes a very narrow window within which the officer must operate: the officer must visit the defendant’s place of abode to attempt personal service within five days of the summons being issued, but at least two days prior to the court date. For the most part this brief span of time does not permit an officer to make a second effort at personal service. Consequently, in those instances in which no one opens the door to accept service, the officer is instructed by the statute to post the complaint and summons to a conspicuous place on the rental premises. This method of service — variously referred to as service by posting or nail and mail — has long been a legally permissible alternative means of service in certain circumstances. In this blog post, I’m going to explore whether and how this works in a situation in which the rental agreement involves something other than a residential setting.

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  • Does North Carolina law allow reconciliation agreements?

    This entry was contributed by Cheryl Howell on November 11, 2016 at 6:00 am and is filed under Family Law.

    Spouses in North Carolina are free to contract with each other before, during and after marriage. The Uniform Premarital Agreement Act regulates contracts entered in anticipation of marriage, see GS Chapter 52B; GS 52-10 and GS 50-20(d) provide statutory authorization for contracts entered during marriage, and GS 52-10.1 is the statutory authorization for agreements made in consideration of living separate and apart. Married people generally are free to enter into any contract “not inconsistent with public policy.” GS 52-10(a).

    What about agreements made during separation when the parties intend to resume the marital relationship rather than to end it, setting out what will happen should the parties separate again in the future? Are such ‘reconciliation agreements’ consistent with public policy? Continue Reading

  • Use of deposition testimony at trial

    This entry was contributed by Ann Anderson on November 9, 2016 at 2:38 pm and is filed under Civil Procedure-General.

    Depositions are primarily a discovery tool.  When it comes to trial, live witness testimony is “more desirable,” Investors Title Ins. Co. v. Herzig, 330 N.C. 681, 690 (1992), and Rule of Civil Procedure 43 states that, “[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules.”  In “sharply limited” circumstances, however, deposition testimony may be used at trial, Warren v. City of Asheville, 74 N.C. App. 402, 408 (1985), and Rule 32 of the North Carolina Rules of Civil Procedure sets out (most of) those circumstances.

    Under Rule 32, deposition testimony may be used at trial if it meets three criteria:

    • It is being used against a party who was present or represented at or had reasonable notice of the deposition;
    • It falls within one of the categories in Rule 32(a)(1) through (a)(4); and
    • It is admissible under the Rules of Evidence (applied as though the witness were present and testifying).

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  • Beyond the Bench Podcast, Season 2: Episode 1, Without a Home

    This entry was contributed by Sara DePasquale on November 4, 2016 at 12:47 pm and is filed under Child Welfare Law.

    Earlier this week, I wrote a post that announced the introduction to Season 2 of the School of Government’s Judicial College podcast, Beyond the Bench. Season 2 consists of six episodes and discusses family homelessness, child neglect, and the child welfare system in North Carolina. The first episode, “Without a Home” is now available on our podcast website (or through Itunes and Stitcher).

    In this first episode, you will hear from two homeless shelter providers and three district court judges who preside over abuse, neglect, and dependency cases. You will learn about family homelessness in North Carolina, whether it constitutes child neglect, and when a person is required to make a report of a child’s suspected neglect to the county child welfare agency (e.g., department of social services). Continue Reading

  • Due Process Rights and Children: Fifty Years of In re Gault – Part Four, the Right to Confrontation

    This entry was contributed by LaToya Powell on November 2, 2016 at 11:15 am and is filed under Juvenile Justice.

    The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. This protection applies to state court criminal actions by virtue of the Fourteenth Amendment. It also applies to juvenile proceedings because of In re Gault, 387 U.S. 1 (1967). Simply put, the right to confrontation allows juveniles to face their accusers in court and dispute their testimony through cross-examination. It allows juveniles to challenge the state’s evidence and protects them from the improper admission of certain testimonial hearsay under Crawford. This post explains a juvenile’s right to confront and cross examine witnesses and how far it extends in juvenile court.

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  • Season Two of Beyond the Bench, “Homelessness, Neglect, and Child Welfare in North Carolina,” Launches This Week!

    This entry was contributed by Sara DePasquale on October 31, 2016 at 2:00 am and is filed under Child Welfare Law.

    Beyond the Bench

    For those of you who aren’t in the know, earlier this year the School of Government’s Judicial College started a podcast, Beyond the Bench. A podcast is essentially a radio show that you can get on the internet, so you can listen any time you want.  “Beyond the Bench” is about the North Carolina court system and features interviews with interesting people who work in the courts. Our first season was hosted by my colleague, Jeff Welty, and focused on criminal law.

    Season Two: Homelessness, Neglect, and Child Welfare in North Carolina

    I am the host of Season Two, which focuses on neglect and the child welfare system with a particular emphasis on homelessness. Through six episodes, you will hear about family homelessness in North Carolina, whether homelessness is neglect and requires a report to a county child welfare (or social services) department under North Carolina’s mandated reporting laws, and the different stages of a child welfare case. Each episode discusses a different stage in a child welfare case and includes the various voices and perspectives of the people involved. Those voices include homeless shelter staff, county department social workers and attorney, the children’s guardian ad litem, a parent attorney, and district court judges.  Continue Reading

  • Child Custody: We Can’t “Change Venue” to Another State

    This entry was contributed by Cheryl Howell on October 28, 2016 at 8:00 am and is filed under Family Law.

    I received a call once from a clerk of court asking what she should do with a voluminous court file received in the mail from a court in another state. It was a large box containing all of the pleadings, motions, reports and other filings for a custody case that had been litigated in another state for several years, accompanied by a court order signed by a judge in that other state “transferring venue” of the case to North Carolina, citing as authority that state’s version of the Uniform Child Custody and Jurisdiction Act (the “UCCJEA”).

    Does the UCCJEA allow a judge to transfer a custody case to another state? When that clerk received the file and the order from the other state, is the North Carolina court required to act in the custody proceeding?

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  • Due Process Rights and Children: Fifty Years of In re Gault – Part Three, the Right to Notice

    This entry was contributed by LaToya Powell on October 26, 2016 at 6:00 am and is filed under Juvenile Justice.

    The right to receive “notice” of a criminal charge or other alleged misconduct is considered to be one of the core requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Although due process requirements vary depending on the circumstances, at a minimum, a person is entitled to notice and an opportunity to be heard before suffering a loss of life, liberty, or property by the government. In re D.B., 186 N.C. App. 556, 564 (2007). This basic protection was not afforded to juveniles prior to In re Gault, 387 U.S. 1 (1967), which extended due process rights to children. Why is notice so important? When must notice be given? How much notice is required? These questions and others are answered in this third post in a series about Gault’s role in protecting the rights of juveniles in delinquency proceedings over the past fifty years.

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  • UAGPPJA is Here to Stay

    This entry was contributed by Meredith Smith on October 21, 2016 at 2:53 pm and is filed under Guardianship.

    I’ve been spending a lot of my time recently focused on the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA; pronounced, “you-ah-gap-jah”).  UAGPPJA is a uniform law enacted by the NC General Assembly during this past legislative session as S.L. 2016-72.   I previously discussed an earlier version of the bill in a blog post available here.  The law creates a new G.S. Chapter 35B and applies to incompetency and adult guardianship proceedings under G.S. Chapter 35A.  It does not apply to minor guardianships under Article 6 of G.S. Chapter 35A.
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