On the Civil Side

A UNC School of Government Blog

https://civil.sog.unc.edu

  • 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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  • Consecutive Terms of Commitment for a Delinquent Juvenile

    This entry was contributed by LaToya Powell on July 13, 2016 at 2:04 pm and is filed under Juvenile Justice.

    Can a district court judge impose a consecutive term of commitment upon a delinquent juvenile who is already committed to a youth development center (YDC)? Until yesterday, when I had to research this question for a client, I assumed that consecutive terms of confinement applied only to adult criminal sentences under G.S. 15A-1354 but not to juvenile dispositions. Juveniles who are long term committed to juvenile facilities generally are placed there indefinitely and must work towards release by completing appropriate treatment and services designed to correct their behavior. Typically, there is no predetermined end date to the commitment (like a criminal sentence) which is why I assumed that juveniles could not receive consecutive terms. I was surprised to learn that my assumption was wrong when I found what appears to be the only NC appellate decision on the issue. See Matter of Thompson, 74 N.C. App. 329, 330 (1985). Although Thompson holds that a court may impose a consecutive commitment term, there are a couple reasons why courts may choose not to do so in a delinquency case. Continue Reading

  • Parenting Coordinators in Custody Cases

    This entry was contributed by Cheryl Howell on July 8, 2016 at 6:00 am and is filed under Family Law.

    ***NOTE: After the publication of this blog, the statute dealing with parenting coordinators was extensively amended. See S.L. 2019-172, effective October 1, 2019.

     

    Unfortunately, the entry of a custody order does not always stop conflict between parents. Anyone working in family law knows that there are cases where, no matter how much effort and skill goes into creating the parenting plan, the parties will continue to come back to court because of the inability of one parent or both to stop fighting.

    Recognizing that on-going litigation is bad for families, the General Assembly in 2005 enacted Article 5 of Chapter 50, GS 50-90 through 50-100, to authorize the appointment of a Parenting Coordinator (“PC”) in custody cases determined to be ‘high-conflict’. The hope is that the PC can help parents reduce their need to return to court.

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  • Paralegal Fees as Part of Attorney Fee Award?

    This entry was contributed by Ann Anderson on July 6, 2016 at 5:00 am and is filed under Civil Practice, Civil Procedure-General, Court Costs and Fees.

    In honor of this short court week, here’s a brief post answering a question I’ve been asked a few times:  When a statute authorizes a court to award reasonable attorney fees as costs, can the fee award also include reasonable paralegal fees?  (Note that paralegal fees are not separately included in the “complete and exclusive” list of allowable expenses in 7A-305(d).)  Some trial judges and clerks of court routinely include paralegal fees in attorney fee awards and others do not.  But have North Carolina’s appellate courts addressed the specific question one way or another?  Yes, and the short answer is that trial courts do indeed have this discretion.  In Lea Co. v. North Carolina Board of Transportation, the Supreme Court reviewed an attorney fee award in the context of a condemnation action.  The court stated pointedly that,

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  • From a Parent Wrongly Accused of Molesting Her Daughter to Becoming an Attorney, Lessons Learned

    This entry was contributed by Austine Long on July 1, 2016 at 5:52 am and is filed under Child Welfare Law.

    In May 2008 a kindergarten teacher in a small town in Georgia was accused of sexually molesting three children. As a result, she was criminally charged, and she lost custody of her son and daughter. For two years, she was not allowed any contact with her daughter, one of the alleged victims.

    Tonya Craft, the accused teacher, shared her story during a session for investigators at the May 2016 spring public defender and investigator conference. Her presentation focused on the importance of client-centered investigation and representation. As I listened to her story about her criminal case, I heard valuable lessons that I think are relevant for attorneys representing parents in abuse, neglect, and dependency proceedings. Continue Reading

  • Administrative Inspection Warrants in Adult Protective Services Cases

    This entry was contributed by Meredith Smith on June 29, 2016 at 2:21 pm and is filed under Guardianship.

    The county department of social services (DSS) receives a report that a 65-year old woman, Mary, was injured by a family member who repeatedly hit her during a dispute that took place at Mary’s home.   Mary lives with her adult daughter, Patricia, and son-in-law, Frank.  The report includes a statement that Mary has been recently diagnosed with dementia and has not left the house in more than a month.  After finding the necessary allegations to screen the report in as an adult protective services (APS) report, the case is assigned to an APS caseworker who commences an evaluation to investigate the report further and determine whether Mary is a disabled adult subject to abuse, neglect, or exploitation and in need of protective services.  See G.S. 108A-103.

    When the caseworker goes to visit Mary as part of the evaluation, Frank refuses to allow her in the home.  The caseworker returns multiple times and each time is denied entry and access to Mary.  The caseworker determines that it is not possible to complete the evaluation without meeting with Mary.  Is there anything that she can do to gain access to the home and thus to Mary? Continue Reading

  • “Live Loan” Checks in Small Claims Court

    This entry was contributed by Dona Lewandowski on June 27, 2016 at 9:13 am and is filed under Small Claims Law.

    Magistrates in some counties are reporting increasing numbers of actions brought by finance companies to collect debts arising from “live loan” checks.  Many of us have seen these in our mailbox: documents that look like checks, made out to us personally, accompanied by instructions for quickly and easily converting the document to cash. When the recipient cashes the check, a contract for loan is created. This post will take a brief look at two North Carolina statutes that govern such loans: GS 75-20, which mandates specific disclosures on the check as well as the attached loan agreement, and GS Ch. 53, Art. 15, the Consumer Finance Act (CFA). Continue Reading

  • Teaching Judges about the School to Prison Pipeline

    This entry was contributed by LaToya Powell on June 22, 2016 at 10:00 am and is filed under Juvenile Justice.

    Every June after celebrating Father’s Day, district court judges throughout the state head to Wrightsville Beach for their annual summer conference. Normally, I get to tag along to give them a legal update on recent juvenile delinquency cases and legislation enacted since their fall conference. However, with less than a handful of published delinquency cases decided since the fall and no new legislation, I thought I’d miss this one. To my surprise, they wanted to hear about a different juvenile law topic – The School to Prison Pipeline (or STPP) – a somewhat controversial topic to discuss with judges because it’s more about policy than law. Here’s what I told them in the most neutral, non-advocacy way possible. Continue Reading

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