On the Civil Side

A UNC School of Government Blog

https://civil.sog.unc.edu

  • You Need to Know More Than Just the Law

    This entry was contributed by Austine Long on August 17, 2016 at 8:35 am and is filed under Family Law, Juvenile Law.

    “We are not criminal defense lawyers. We are civil rights lawyers because being a criminal defense lawyer is kind of limiting”. (Alex Charns, Attorney, Annual Contractor and Assigned Counsel Training, UNC School of Government June 2016).

    Considering all the many issues clients present with, referring to ourselves as only a specific type of attorney, such as a juvenile or family law attorney, does seem limiting. Representing people in any area of law requires more of attorneys, especially as they begin to address the multitude of social, health, and economic challenges their clients face.

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  • It’s My Birthday and I’ll Cry if I Want To; Is That the Norm for Children in Foster Care?

    This entry was contributed by Sara DePasquale on August 12, 2016 at 6:00 am and is filed under Child Welfare Law.

    Today is my birthday (for those of you who are wondering, 46). It is my absolutely favorite day of the year. It’s not because of presents or the fact that I can easily justify why I should be the center of attention for the day (yes, I am a Leo). It’s because every year, on August 12th, I know no matter what my sister, my brother, and my mother will call me. It’s not a text; it’s not an email; it’s an actual phone call, with a real conversation. I can count on that predictability. Knowing I’m going to talk to each of them makes me really happy. My mother will call first; my sister will sing me some happy birthday jingle she made up, and my brother will wish me a happy birthday while asking how I’m going to celebrate and what else is happening in my life.

    As my birthday approached this year, I found myself thinking about children in foster care and their birthdays. Is there any predictability? Is there a family visit? Are there phone calls? Is the day even acknowledged? I searched the relevant statutes, regulations, and state’s policy manuals, and I couldn’t find anything that addressed a child’s birthday (if there’s something out there that I missed, please let me know). But, the statutory, regulatory, and policy silence does not mean that the court order or the child’s case plan should also be silent. Continue Reading

  • Due Process Rights and Children: Fifty Years of In re Gault – Part One

    This entry was contributed by LaToya Powell on August 10, 2016 at 9:33 am and is filed under Juvenile Justice.

    On May 15, 1967, the U.S. Supreme Court granted due process rights to children in the landmark case of In re Gault, 387 U.S. 1 (1967). The case involved 15-year-old Gerald Gault, who was taken into police custody without notice to his parents, held for four days, and committed to a juvenile facility for a maximum of six years for making a prank phone call to his neighbor. He received no prior notice of the charges and was adjudicated delinquent following an informal hearing with a judge without any witnesses or representation by counsel. His case would spark outrage today but was the norm for juvenile proceedings at the time. When the Supreme Court reversed Gault’s adjudication, it transformed the nature of juvenile court by defining basic requirements of due process that now apply to all delinquency hearings. These rights include:

    • the right to notice of the charges;
    • the right to an attorney;
    • the right to remain silent; and
    • the right to confront and cross-examine witnesses.

    While this decision marked a watershed moment in children’s rights, the language of the Court was not absolute. The Supreme Court did not extend these rights to all juveniles. Gault applies only to juveniles whose adjudication of delinquency may result in commitment to a state institution, which excludes undisciplined juveniles. The Court also limited its holding to the adjudicatory stage, leaving states open to define due process in other stages of juvenile proceedings (i.e., pre-adjudication, disposition, and post-disposition). Gault, 387 U.S. at 13. As a result, the decision did not completely change the legal landscape but left a legal patchwork among state jurisdictions that continues today. This post is the first in a series of posts that will discuss Gault’s impact on juvenile delinquency proceedings in NC and whether Gault’s promise of due process rights for children has been fully achieved.

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  • Equitable Distribution: Can we use the date of separation from the divorce judgment?

    This entry was contributed by Cheryl Howell on August 5, 2016 at 6:00 am and is filed under Family Law.

    Anyone who works with equitable distribution knows that the date of separation is a critical fact that must be established before anything else can be done in the case because it is the date used to define and value the marital estate. The date of separation should be established before the parties spend time and money engaging in the discovery process and definitely must be established before the court begins the process of classifying and valuing marital and divisible property.

    So what is the relationship between a date of separation found as a fact in an absolute divorce judgment and the date of separation in the equitable distribution case? If the parties have obtained an absolute divorce and that judgment contains a date of separation, is that date binding on the equitable distribution case? Can one of the parties argue in the ED case that a different date was the actual date of separation?

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  • May a Different Judge Hear My Rule 60(b) Motion?

    This entry was contributed by Ann Anderson on August 3, 2016 at 5:00 am and is filed under Civil Practice, Civil Procedure-General, Judicial Authority.

    Lawyers typically don’t litigate (nor judges adjudicate) for very long in North Carolina without confronting Rule of Civil Procedure 60(b).  This rule allows a trial court to “relieve a party…from a final judgment, order, or proceeding” for a number of reasons based in equity. The reasons are divided into six categories:

    • Mistake, inadvertence, surprise, or excusable neglect;
    • Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
    • Fraud…, misrepresentation, or other misconduct of an adverse party;
    • The judgment is void;
    • The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
    • Any other reason justifying relief from the operation of the judgment.

    Unlike Rule 50 (JNOV) and 59 (new trial) motions, which must be made within 10 days after judgment, Rule 60(b) motions may be filed up to one year from the order (or, for the last three categories, potentially even later), as long as the timing is reasonable. There will be occasions when the moving party can be heard by the same judge who issued the order.  But often the passage of time can make this difficult: The judge may be presiding in a different district or may be ill, on leave, or no longer on the bench.  It’s not surprising, then, that fairly often my colleagues and I are asked:  May a judge other than the original judge hear and rule on a Rule 60(b) motion? Continue Reading

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  • Debt Buyers & North Carolina’s Consumer Economic Protection Act

    This entry was contributed by Dona Lewandowski on July 29, 2016 at 12:01 pm and is filed under Civil Practice, Civil Procedure-General.

    Last month John Oliver made headlines across the country when his TV show, Last Week Tonight, did an episode focusing on common practices by debt buyers.  To illustrate how easy it is to buy consumer debt, Oliver formed a debt-buying company (“CARP”) after complying with legal requirements in Mississippi: paying $50 to the State and appointing himself Chairman of the Board. The new company set up a very basic website and was quickly offered an opportunity to buy $3 million of consumer medical debt for $60,000, along with the names, addresses, and social security numbers of almost 9,000 alleged debtors.  At the end of the episode Oliver— in his role as CARP Chairman– forgave the debt by pushing a giant red button. You can watch the excitement, and perhaps learn something about debt-buying, by going to https://www.youtube.com/watch?v=hxUAntt1z2c .

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  • The Clerk’s Contempt Authority

    This entry was contributed by Meredith Smith on July 27, 2016 at 12:35 pm and is filed under Contempt, Judicial Authority.

     

    **UPDATE: Effective July 21, 2017, Session Law 2017-158 expands the clerk’s civil contempt authority. The clerk now has the authority to exercise civil contempt in any instance when the clerk has original subject matter jurisdiction and issued the order that is the basis for the civil contempt in addition to any instance where a statute expressly provides for the clerk’s civil contempt authority.  See S.L. 2017-158, Sec. 11.**

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  • Vinson, Voisine, and Misdemeanor Crimes of Domestic Violence

    This entry was contributed by Cheryl Howell on July 22, 2016 at 6:00 am and is filed under Domestic Violence.

    This post was authored by School of Government faculty member Jeff Welty and posted originally on the School’s Criminal Law Blog

    The United States Supreme Court recently decided a case about what counts as a “misdemeanor crime of domestic violence” for purposes of the federal statute prohibiting individuals who have been convicted of such crimes from possessing firearms. I’ve had several questions about whether the ruling affects last year’s Fourth Circuit decision holding that North Carolina assaults generally don’t qualify as “misdemeanor crime[s] of domestic violence.” For the reasons set out below, I don’t think the Supreme Court case clearly overrules the Fourth Circuit’s decision.

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  • 2016 Legislative Changes Impacting Child Welfare

    This entry was contributed by Sara DePasquale on July 20, 2016 at 5:45 am and is filed under Child Welfare Law.

    *This post was updated on August 1, 2016 to reflect the Session Law for H424.

    The 2016 Appropriations Act (S.L. 2016-94) addresses more than the State’s budget. Section 12.C makes substantive changes to the General Statutes in Chapter 7B that govern abuse, neglect, or dependency proceedings. The statutory amendments became effective on July 1st. In addition, S.L. 2016-115 (H424), creates a new criminal statute, “The Unlawful Transfer of Custody of a Minor Child,” and is effective for offenses committed on or after December 1, 2016. The law also amends the definition of a neglected juvenile in G.S. Chapter 7B.  Continue Reading

  • Third Party Custody: Does a parent lose constitutionally protected status by signing a consent custody order granting custody rights to a non-parent?

    This entry was contributed by Cheryl Howell on July 15, 2016 at 6:00 am and is filed under Family Law.

    It is now well established that a parent has a constitutional right to exclusive care, custody and control of his or her child. This constitutional right protects a parent against claims for custody by non-parents. A court cannot apply the best interest of the child test to determine whether a non-parent should have custody of a child unless the court first concludes that the parent has waived her constitutional right to exclusive custody. A parent waives her constitutional right by being unfit, neglecting the welfare of the child, or by conduct otherwise inconsistent with the parent’s protected status. There is no precise definition of conduct inconsistent with protected status and our appellate courts have provided no comprehensive list of actions that will result in a parent’s loss of constitutional rights. Instead, whether a parent’s conduct has been inconsistent with protected status is an issue that must be determined on a case-by-case basis. The non-parent seeking custody has the burden of proving the parent’s inconsistent conduct by clear, cogent and convincing evidence. For more detail on this law, see Family Law Bulletin, Third Party Custody and Visitation Actions.

    What if a parent signs a consent custody order that grants custody rights to a non-parent third party? Does the parent lose the ability to assert her constitutional right to custody in subsequent custody proceedings? For example, if a parent agrees to a court order granting custody to grandmother, does the parent have the constitutional right to regain custody from grandmother in the future? Or, if another non-parent wants custody or visitation after parent has entered into a consent custody order with grandmother, does the other non-parent still need to prove parent has waived her constitutional right to custody and, if so, can the non-parent rely on the fact that parent voluntarily gave custody to the grandmother to establish that the parent acted inconsistent with her protected status?

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