The General Assembly has amended the rule of procedure in civil cases for discovery of information about another party’s expert witness. North Rule of Civil Procedure 26(b)(4) has largely been unchanged since 1975. With the amendments made by House Bill 376, S.L. 2015-153, the rule updates the methods of disclosing and deposing experts and implements some explicit work-product-type protections. The Rule now looks more like the corresponding provisions in Federal Rule of Civil Procedure 26 (after that Rule’s own significant round of changes in 2010). The changes to North Carolina Rule 26(b)(4) apply to actions commenced on or after October 1, 2015. The rule now provides the following:
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Who Is a “Caretaker” in Child Abuse and Neglect Cases?
This post was amended to reflect changes made to the definition of caretaker that occurred after the post was published by section 1 of S.L. 2015-123* (effective January 1, 2016) and Section 12C.1.(d). of S.L. 2016-94, effective July 1, 2016**
In North Carolina, abuse, neglect, and dependency cases determine the child’s status as abused, neglected, or dependent by examining the child’s circumstances rather than determining the fault or culpability of a parent. In re Montgomery, 311 N.C. 101 (1984). In determining a child’s status, social services agencies and trial courts must look at the statutory definitions of abuse, neglect, and dependency. G.S. 7B-101(1), (15), (9). These definitions require the social services agencies and courts to determine who created the child’s circumstances. In abuse and neglect cases, was it the child’s parent, guardian, custodian, or caretaker? In dependency cases, was it the child’s parent, guardian, or custodian? If the child’s circumstances were not caused by a parent, guardian, custodian, or caretaker, the child is not abused, neglect, or dependent. A court order establishes the relationship of guardian [G.S. 7B-600; G.S. 35A-1202 & Article 6] or custodian [G.S. 7B-101(8)] to a child, but who is a caretaker? Continue Reading
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And Now We Don’t Have to Record Ex Parte DVPO Hearings
In Stancill v. Stancill, 773 SE2d 890 (NC App, June 16, 2015), the court of appeals held that a hearing on a request for an ex parte DVPO pursuant to Chapter 50B is a “civil trial” within the meaning of GS 7A-198 – a statute that requires that all “civil trials” be recorded when court reporting personnel is unavailable. But the recording requirement for these ex parte orders was short-lived. The General Assembly very quickly amended GS 7A-198(e) to specifically exclude ex parte and emergency hearings conducted pursuant to GS Chapters 50B and 50C on or after July 31, 2015.
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Improper Delegation of Authority and Intermittent Confinement
Last month, I wrote a blog post about the recently enacted Juvenile Code Reform legislation (S.L. 2015-58, HB 879), which creates several new laws affecting delinquent juveniles. The last section of the bill amends G.S. 7B-2506(12) and (20), which authorize intermittent confinement in a juvenile detention facility as a Level 1 or Level 2 dispositional alternative. Currently, the trial court must determine the timing of the intermittent confinement, but beginning December 1, 2015, it must also determine the imposition of the confinement. Although this change appears to be minor, it addresses a major issue related to juvenile dispositions – the improper delegation of the trial court’s authority, typically, to court counselors. Most of the calls I get about improper delegation of authority in juvenile court concern intermittent confinement, and particularly, how it is imposed. This post will examine how the new legislation was designed to address these concerns by changing the way district court judges impose intermittent confinement.
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NO FINES FOR CIVIL CONTEMPT
This Post was written by Professor Michael Crowell, UNC School of Government.
The question about fines for civil contempt is now resolved. Just over a year after the court of appeals allowed the use of a fine for civil contempt the General Assembly stepped in to say no, fines are not allowed for civil contempt, the only sanction is confinement until the person complies with the court order. In doing so, the legislature restored the law to what most thought it was before the appellate court ruling.
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Should Little Johnny Play Football or Take Piano Lessons? Allocating Legal Custody
All custody orders in cases between parents must allocate custody rights and responsibilities in a way that meets the best interest of the child. GS 50-13.2. “Custody” is a term that is not well-defined in North Carolina law but clearly refers to both physical care and control of a child as well as to the authority to make decisions regarding the child. Physical care and control is referred to as physical custody while decision-making authority is referred to as legal custody. GS 50-13.2(a) requires the court to consider “joint custody” whenever requested by a parent. What does joint legal custody mean? What can a court do when the parents simply cannot agree on whether little Johnny will play football or take piano?
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Slip-ups happen, but when are they “excusable neglect”?
Defendant fails to answer the complaint on time, so plaintiff seizes the moment and obtains default judgment. A party does not understand a notice of hearing, fails to attend, and the court enters a final order in the opponent’s favor. These and similar scenarios happen regularly in North Carolina courts, and afterward the most common argument for relief from the judgment is “excusable neglect.” Rule of Civil Procedure 60(b) allows relief from a “final judgment, order, or proceeding” on this basis. But just what does excusable neglect mean?
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Assignment to Small Claims Court: What Happens When Things Go Wrong?
My last post discussed the clerk of court’s role in determining whether a case is eligible for small claims court under the terms of the chief district court judge’s order of assignment (hereinafter, OA). This post addresses what happens when things go wrong: What options do court officials have when a case turns up on the small claims calendar that does not meet the requirements for assignment to small claims court?
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Mandated Reporting of Child Abuse, Neglect, or Dependency: What’s an Attorney To Do?
You are appointed to represent a juvenile in a delinquency proceeding. The petition alleges the juvenile assaulted his stepfather. When you meet with your client, he discloses that his stepfather has been beating him for years. This time, his stepfather went after his younger sister, and your client tried to protect her. In another case, you are hired to represent a father in a child custody action. Your client tells you that he just moved out of the home, where his baby and the baby’s mother live. He discloses that the mother has a drinking problem and frequently attacks him physically when she is intoxicated, sometimes while she is holding the baby. He also tells you that he has come home from work to find the baby is in dirty diapers and crying in the crib while the mother is passed out on the couch.
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Incompetency Proceedings and the SCRA (Yes, You Read that Right)
We’ve now posted a handful of times about the Servicemembers Civil Relief Act (SCRA) on this blog. In particular, we’ve posted on the SCRA’s application to non-judicial foreclosures, juvenile proceedings, and family law cases. At the risk of being told that the blog should be renamed “The SCRA and Other Civil Stuff,” I’m going to add another SCRA post to the list. In my defense, over the course of the past few months I’ve received a number of questions regarding the applicability of the SCRA to proceedings before the clerk of superior court. In particular, I’ve been asked whether the SCRA applies to incompetency proceedings filed under G.S. Chapter 35A for the purpose of obtaining a guardian for an alleged incompetent adult. Here’s how I’ve answered the questions I’ve received:
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