The North Carolina Court of Appeals has had quite a bit to say about ex parte DVPOs in the past few years. Repeatedly recognizing that while “an ex parte DVPO may be short-lived, … it has a potentially long-lasting and serious impact on a defendant, whether or not a DVPO is later issued,” Stancil v. Stancil, NC App (June 16, 2015), the court consistently has interpreted GS 50B-2 strictly.
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Initial Removal of a Child from a Home Because of Suspected Abuse, Neglect, or Dependency, Amended G.S. 7B-504
Spoiler Alert !! Effective June 2, 2015, amendments were made to G.S. 7B-504.
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Equitable Distribution: Classification of Marital Debt
For a reason never articulated by our appellate courts, debts incurred during a marriage are treated very differently in equitable distribution than is property. While public policy – codified as the marital property presumption found in GS 50-20(b) – is to include all property acquired during the marriage in the marital estate unless it is shown to fit within one of the limited categories of separate property, debt incurred during the marriage is excluded from the marital estate unless a party can prove the debt was incurred for the joint benefit of the parties.
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Juvenile Defenders: Part of the Solution
Years ago when my son was in the first grade, he took a 3 inch plastic toy knife to school. I received an alarming phone call from the principal. She explained that he took the knife out of his book bag to show it to his classmates. He did not make any threatening statements or attempt to use it in a threatening manner. The principal said that even though the school had a zero tolerance policy, there would be no disciplinary action taken because of my son’s age. She also considered that he had no prior incidents or behavior issues and did not have any violent intentions when he showed his classmates the knife. Today, my son would likely have a different experience.
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“Tweaking” of Custody Orders Not Allowed
Custody orders can be modified only when there has been a substantial change in circumstances affecting the welfare of the child. So what can be done when there is a change that is not actually substantial or that has little or no impact on the welfare of the child but which makes the existing parenting plan inconvenient or more expensive for the parents? For example, the work schedule of one parent changes in a way that makes the existing plan very inconvenient or significantly increases that parent’s childcare costs? Or, a child starts playing a new sport where the games are scheduled during the time child is supposed to visit the parent living in another state? Is there any room in the law for allowing minor “tweaks” to custody orders to accommodate normal life changes?
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Dude, Where’s My Note?
UPDATE: On February, 7, 2017, in an unpublished decision, In re Foreclosure of Iannucci, the NC Court of Appeals upheld the trial court’s reliance on a lost note affidavit as competent evidence to support the court’s findings of fact and, in turn, the conclusion of law that the lender is the holder of a valid debt. In the opinion, the court did not directly address the jurisdictional issues raised in question two below. However, the superior court makes the same inquiry on appeal de novo from the clerk as the clerk does in the first instance in a power of sale foreclosure. See In re Foreclosure of Lucks, ___ NC ___ (Dec. 21, 2016). By finding that the superior court appropriately relied on a lost note affidavit, a similar finding would likely apply to the jurisdictional authority of the clerk to rely on a lost note affidavit. Because the court’s decision is unpublished, it does not constitute controlling legal authority, but is some indication of how a court may decide a similar issue on appeal in the future.
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When is a temporary child custody order really a temporary child custody order?
G.S. 50-13.5 allows a court to enter a temporary custody order whenever the court deems it appropriate. The ability to enter a temporary order gives the court the power to address immediate needs of families going through the litigation process. There is no limit on the number of temporary orders that can be entered in a case and temporary orders can be changed at any time, by any judge, for any reason.
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What Adjudications Count When Determining a Juvenile’s Delinquency History Level
One of the most important factors affecting a juvenile court disposition is the juvenile’s delinquency history level, which in turn depends primarily on the juvenile’s prior delinquency adjudications. The delinquency history level (low, medium, or high), combined with the classification of the current offense, determines which dispositional alternatives are available in a particular case. G.S. 7B-2508. The higher the delinquency history level, the greater the consequences for the juvenile. Obviously, it’s important for the court to get it right. Based on recent advising requests, there is some confusion about what counts as a prior adjudication and what happens when there are multiple adjudications before the court. A recent appellate decision addressed one of these questions. Here’s a breakdown of the case, as well as new legislation in response, which will change the analysis.
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Can a verification problem be corrected after a divorce complaint is filed?
GS 50-8 requires verification for a complaint requesting a divorce. What can be done if the divorce complaint is filed without a verification or if the verification is faulty in some way? Must the complaint be dismissed and a new action instituted – requiring another payment of the substantial filing fee?
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The Mysterious World of Small Claims Procedure
Every so often I get telephone calls from attorneys, fresh from a rare appearance in small claims court, calling to offer some helpful observations about the need for more and better training of small claims magistrates. I suspect that chief district court judges and clerks of superior court receive similar calls. While magistrates, like the rest of us, sometimes make mistakes, I’ve learned that it is often the attorney, rather than the magistrate, who is in error, for reasons that are entirely understandable. After all, attorneys share that fundamental rite of passage of having suffered through two agonizing (at least for some of us) semesters of law school mastering various aspects of the Rules of Civil Procedure. And Rule #1 (literally) assures us that “These rules shall govern the procedure in superior and district courts of the State of North Carolina in all actions and proceedings of a civil nature except when a differing procedure is prescribed by statute.” GS 1A-1, Rule 1. So what’s up with small claims?