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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?

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 […]

  **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 […]

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.

READ POST "Vinson, Voisine, and Misdemeanor Crimes of Domestic Violence (July 22, 2016)"

*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. 

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?

READ POST "Third Party Custody: Does a parent lose constitutionally protected status by signing a consent custody order granting custody rights to a non-parent? (July 15, 2016)"

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.

***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.

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 […]

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.