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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Keywords: Rule 59
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Tenancy by the Entirety in Equitable Distribution: Did the statutory amendment change anything?
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.
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Please Don’t Charge the Victim
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?
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Summary Ejectment & Unconscionability: When Breach of the Lease Is Not Enough
North Carolina law permits summary ejectment from residential housing only for reasons specified in the statute. G.S. 42-25.6. In Eastern Carolina Regional Housing Authority v. Lofton, 767 S.E.2d 63 (2014), the North Carolina Court of Appeals decided a case—and created new law – related to one of the most common grounds for summary ejectment: breach of a lease condition which, according to the lease itself, triggers the landlord’s right to declare the lease forfeited.
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Taking a Voluntary Dismissal: Some Pitfalls
The “savings” provision of North Carolina Rule of Civil Procedure 41(a) can be a lifeline for a plaintiff who, for one reason or another, can’t proceed with its case the first time around. Rule 41(a)(1) allows a plaintiff to voluntarily dismiss its case without prejudice by giving notice of dismissal any time before it rests its case. Plaintiff may file the action again within one year, and the statute of limitations on its claim is extended for that refiling period. Rule 41(a)(1); North Carolina RR Co. v. Ferguson Build. Supp., Inc., 103 N.C. App. 768, 772–73 (1991). As generous as the savings provision is, it can be a tricky business. If done improperly or at the wrong time, a dismissal could doom a case rather than save it. Before giving notice of voluntary dismissal, heed the following reminders: Continue Reading
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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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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.