Recent blog posts - 67 of 70

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.

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 […]

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?

READ POST "Can a verification problem be corrected after a divorce complaint is filed? (May 29, 2015)"

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?

Is a consent custody order void if it is entered in a case between a nonparent and a parent and the consent order does not include the conclusion that the parent has waived his or her constitutional right to exclusive, care, custody and control of the child?

READ POST "Nonparent vs Parent Consent Custody Orders (May 22, 2015)"

*This post was amended on January 29, 2016 to add Rule 45 (subpoena) and on February 22, 2017 to specifically reference Rule 12(b)(3)

Have you ever felt like you’re playing a game of one potato, two potato when figuring out if a Rule of Civil Procedure applies to your abuse, neglect, dependency, or termination of parental rights action? Let me provide you with a guide instead.

S.L. 2013-103 amended the marital property presumption found in G.S. 50-20(b)(1) to specifically include entirety property. As of October 1, 2013, the statute provides:

It is presumed that all property acquired after the date of marriage and before the date of separation is marital except property which is separate property under subdivision (2) of this subsection. It is presumed that all real property creating a tenancy by the entirety acquired after the date of marriage and before the date of separation is marital property. Either presumption may be rebutted by the greater weight of the evidence.

READ POST "Tenancy by the Entirety in Equitable Distribution: Did the statutory amendment change anything? (May 15, 2015)"

Many juvenile cases are resolved through admissions (known as guilty pleas in criminal court), often with the prosecutor’s agreement to reduce the charge. Sometimes, the reduced charge is a lesser-included offense of the original offense charged in the petition, such as changing common law robbery to misdemeanor larceny. See State v. White, 142 N.C. App. 201, 204 (2001). But, often, a reduced charge is not a lesser-included offense, like changing sexual battery to simple assault. See State v. Corbett, 196 N.C. App. 508, 511 (2009). The question then becomes: How can the State proceed on a different offense than the one charged in the petition? Can the prosecutor prepare a misdemeanor statement of charges as in criminal court? Or, is a new petition required? Here are the answers.

READ POST "Reducing Charges in Juvenile Court (May 13, 2015)"

In my last post, No Default Judgment in Contempt, I wrote about the requirement that all contempt orders contain the conclusion that respondent acted willfully when committing the act that is the basis for contempt. Of course, that conclusion must be supported by findings of fact, which in turn must be based on evidence.

So what findings are sufficient to support the required conclusion when contempt is based on the failure to pay money, such as child support?

READ POST "Contempt: Establishing Ability to Pay (May 8, 2015)"

By Guest Contributor, John Rubin*

Can the person protected by a DVPO be charged with violating the order?

Here’s a question I get occasionally: What language should I use to charge aiding and abetting a violation of a domestic violence protective order (DVPO)? Here’s a similar one: If someone is arrested for aiding and abetting a violation of a DVPO, is the person subject to the 48-hour pretrial release law for domestic violence offenses?

READ POST "Please Don’t Charge the Victim (May 6, 2015)"