An indigent parent in a child support case is entitled to appointed counsel only for contempt proceedings. But child support cases can be complex. Where should appointed counsel draw the line when representing these parents? Should they limit representation to the actual contempt proceeding or do they delve further? Is the underlying order valid? Is there a good cause to adjust the arrears or is there a change of circumstances justifying a modification of support? Judges must approve the fee applications for the time spent on cases, so counsel should take care to act within the scope of their representation.
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Review of Evidence during Jury Deliberations
During deliberations in a motorcycle accident trial, the jury asks to view and discuss some exhibits in the jury room: a series of admitted photos depicting part of the accident scene. May the judge allow the jury to take the photos into the jury room? As with most things, it depends.
This question used to be governed by the “well-settled” rule in Nunnery v. Baucom, 135 N.C. App. 556 (1999), that “trial exhibits introduced into evidence may not be present in the jury room during deliberations unless both parties consent.” For civil cases, the “consent required” rule was replaced in October 2007 by G.S. 1-181.2, which governs both open-court and jury room evidence review. Although this statute is now a few years old, it is perhaps not as widely-known as it could be. For a recent case in point, see Redd v. Wilcohess, LLC, 745 S.E.2d 10 (N.C. App. 2013). So, here’s a review of the standards established by G.S. 1-181.2.
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Can Probation Be Revoked in Juvenile’s Absence?
Suppose you are a North Carolina district court judge presiding over a probation revocation hearing in the case of a juvenile who was adjudicated delinquent for a serious or violent offense. Present at the hearing are the juvenile’s counsel, the juvenile’s parent(s), the prosecutor, and the juvenile court counselor. In other words, everyone is present, except for the juvenile, who received notice but failed to appear. To complicate things, the juvenile’s maximum 2-year probation term expires today. Can you proceed? And, if so, can you revoke the juvenile’s probation and commit the juvenile to a youth development center (YDC)? Surprisingly, there doesn’t appear to be a clear answer. Here’s why.
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Access to Records in Financial Exploitation Cases
It will now be much easier for county social services agencies and law enforcement officials to investigate reports of suspected financial exploitation of disabled adults and older adults. The Administrative Office of the Courts just approved a new form (AOC-SP-630) that officials can use to ask a district court judge to issue a subpoena directing a financial institution to provide copies of the adult’s financial records. This new subpoena authority was authorized in legislation (S.L. 2014-115, s. 44) that went into effect October 1, 2014.
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Servicemembers’ Civil Relief Act Applies to Family Cases Too
In January we were reminded by the North Carolina Supreme Court in In Re J.B. that:
1) We have military personnel living throughout our state, not just in districts with military facilities, and
2) The federal Servicemember’s Civil Relief Act, 50 U.S.C. app. sec. 501, et. seq., (SCRA) applies to all non-criminal judicial and administrative proceedings involving service personnel, including domestic and juvenile cases.
The Act contains no exception for any civil proceeding. So it covers custody, divorce, support, equitable distribution, 50B and 50C cases, abuse, neglect and dependency proceedings and termination of parental rights.
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The Things Judges Say! Judges’ Comments in Jury Trials
In Lacey v. Kirk, (COA14-688; Dec. 31, 2014), the Court of Appeals considered whether a judge’s statements in the jury’s presence entitled defendant to a new trial. Defendant took issue with several things the judge said while defendant testified, including instructing her to “tell the truth” when she was evasive; that she had “a problem” if she couldn’t prove a point without hearsay; and to “answer the question first” before explaining. The court held that—considered cumulatively and in context—these comments were an attempt to aid the flow of evidence and were not prejudicial. Also, the judge’s instructions to counsel to move faster and avoid repetition “exhibited a certain degree of impatience” but were “meted out” to both sides and were appropriate to preserve court time. Lacey is a fresh example our courts’ basic analysis of judge statements in front of a jury: Neutrality is paramount, but context and cumulative impact determine whether questionable remarks taint a party’s case.
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What’s the Law About Incorporating Separation Agreements?
Incorporating a separation agreement has significant consequences. The contract becomes a court order. Contract remedies are no longer available but the contempt power of the court is. Some provisions become subject to modification, and remarriage and cohabitation will terminate spousal support provisions. Obviously an important decision, parties should think carefully about the pros and cons of incorporation before submitting their contract to the court.
But what if one party wants to incorporate and the other doesn’t? When can or should the court refuse to incorporate?Does it matter that the person objecting agreed to incorporation in the contract itself? What if the plaintiff requests incorporation in the divorce complaint and the defendant fails to file an Answer or show up for the hearing? Can the court incorporate?
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Clerks, Adoptions and Division Review (Part I)
Ask most any clerk of superior court in North Carolina and they will likely tell you that one of the highlights of their job is presiding over the finalization of adoptions. However, the clerk’s role does not end upon entry of the final decree. Within 10 days of the entry of the final decree, the clerk must transmit all of the original records filed in connection with the adoption (except the petition and final decree, of which only copies are sent) to the Division of Social Services of the North Carolina Department of Health and Human Services. G.S. 48-9-102(d). The Division is charged with permanently indexing and filing the papers received from the clerk. G.S. 48-9-102(e). Included in these documents is the original Report to Vital Records (DSS Form 1815) signed by the clerk. Once the Division completes the indexing process, the Division sends the Report to the State Registrar and retains and seals the remaining documents from the adoption file. G.S. 48-9-102(f). The Report authorizes the State Registrar to issue a new birth certificate for the adoptive child with the child’s adoptive name and the names of the adoptive parents.
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New SOG Bulletin: “Childhood Immunizations and the Role of a County Department of Social Services”
Although I work for Carolina, where basketball reigns supreme, it is not unheard of to meet a hockey fan. That’s me… a major hockey fan. And, if you’re like me and follow the NHL, you know that this hockey season has been marked by an outbreak of the mumps. But it’s not just hockey. If you’ve watched the news lately, you know there has also been a measles outbreak at Disneyland. These events remind us that communicable diseases spread quickly and can have devastating effects. Thankfully, we have vaccines for many of these highly contagious communicable diseases.
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We have new Child Support Guidelines.
Our new guidelines apply to actions heard on or after January 1, 2015.
They reflect the 2014 tax rates, Consumer Price Index and federal poverty level (the new poverty level increased the income level below which a parent qualifies for the self-support reserve). In addition, the Conference of Chief District Court Judges tweaked several substantive provisions. Thanks to Chief Judge Beth Keever, chair of the subcommittee responsible for reviewing the guidelines and making recommendations to the full Conference, for her contribution to this summary of those changes.