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Domestic Law Update Cheryl Howell June 19, 2003. Domestic Violence S.L. 2003-107 amends 50B-3(b) Effective 5/31/03 Court may renew order up to 1 year,

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Presentation on theme: "Domestic Law Update Cheryl Howell June 19, 2003. Domestic Violence S.L. 2003-107 amends 50B-3(b) Effective 5/31/03 Court may renew order up to 1 year,"— Presentation transcript:

1 Domestic Law Update Cheryl Howell June 19, 2003

2 Domestic Violence S.L. 2003-107 amends 50B-3(b) Effective 5/31/03 Court may renew order up to 1 year, including orders previously renewed, on motion filed before expiration of current order Court may renew for good cause New act of domestic violence not required

3 Domestic Violence Basden v. Basden, UNPUBLISHED Court of appeals 12/03/02 Order renewing protective order must contain findings of fact and conclusions of law Use AOC form CV-306 with caution

4 Domestic Violence Pending legislation: NOT YET ENACTED S 718: requires court to consider temporary custody in 50B cases and creates presumption in favor of non- offending primary caregiver S 919: requires surrender of firearms and permits in 50B cases under circumstances listed in bill

5 Custody: Problem #1 Mom and dad have custody order giving mom custody. Mom dies. Grandmother files complaint for custody or visitation, alleging dad is “estranged” from children and visits infrequently. Dad files motion to dismiss pursuant to Rule 12(b)(6) – do you grant it?

6 Custody: Grandparents 4 basis for custody/visitation : 50-13.1: Best interest after parents have lost constitutional protection. McIntyre, 341 NC 629 (1995) 50-13.2(b1): Visitation as part of a custody order 50-13(j): Upon showing of changed circumstances in case with existing order 50-13.2A: Visitation after step-parent or relative adoption

7 Custody: Grandparents Problem #1: McDuffie v. Mitchell, N.C.App Dec. 2002 No 50-13(j): parents’ case ended with mom’s death. See Price v. Breedlove, 138 NCApp 149 (2000) Dad has constitutional protections even though not the custodial parent Allegations insufficient to support conclusion he lost protected status

8 Custody: Problem #2 Custody order between mom and dad giving mom custody. 1 year later, grandfather files motion to intervene and motion in the cause for visitation alleging changed circumstances. Another judge allowed intervention. Mom files motion to dismiss motion in the cause. Do you grant it?

9 Custody: Grandparents Problem #2: Eakett v. Eakett, NC App (5/6/03) – motion in the cause dismissed Grandparent statutes give rights only in ongoing custody cases or when step- parent/relative adopts child If no adoption, grandparent must allege no “in-tact family” No claim allowed unless family is “undergoing some strain on family relationship.”

10 Custody: Problem #3 Mom and dad have custody order giving mom custody. Mom dies. Grandmother files for custody. Complaint alleges dad has “lifelong problem with alcohol abuse” and is “economically unstable.” Would you grant dad’s Rule 12(b)(6) motion to dismiss?

11 Parent’s constitutional rights Problem #3: Owenby v. Young, NC 5/2/03 Parental right to custody and control is protected by due process, equal protection and “possibly the Ninth Amendment.” No best interest unless parent is unfit, neglects child, or engages in conduct inconsistent with protected status Standard of proof is clear and convincing evidence

12 Owenby v. Young No dismissal on pleading Trial court held grandmother did not prove severe drinking problem nor instability; dismissed her claim after trial Court of appeals held dad waived by driving and drinking with children in car Supreme court held trial court’s findings are conclusive on appeal: no loss of parental rights established by facts as found by trial court

13 Custody: Problem #4 Plaintiff files for custody & paternity of child born during marriage of defendant and another man. Complaint alleges plaintiff and defendant are the parents, child has plaintiff’s last name, and plaintiff visits child regularly. Defendant files 12(b)(6) saying plaintiff has no standing because he has not legitimated the child?

14 Custody Problem #4: Smith v. Barbour, NCApp (12/03/02) In case against mom, father of child born out of wedlock treated as an unrelated 3 rd party until legitimation or order of paternity. Rosero v. Blake, 150 NC App 251 (2002) See also David v. Ferguson, 153 NC App 482 (2002)(reversing trial court’s custody to father based on best interest test)

15 Rosero v. Blake Reversed by NC supreme court on 6/13/03 Supreme court held that common law presumption that mothers are entitled to custody of children born out of wedlock unless unfit was abrogated by 50-13.2(a): Between mother and father, there are no presumptions. Best interest test applies

16 Standing Smith v. Barbour 3 rd parties have standing if allege sufficient relationship with child. Ellison v. Ramos, 130 NC App 389 Sharing last name and frequent visitation establishes relationship sufficient to give standing to file action But – district court lost jurisdiction when dad filed legitimation proceeding with clerk

17 Custody: Problem #5 Children born in NC: 1994 & June 1999 Feb. 2000: move with defendant to Md June 2000: children to NC with plaintiff but parties agree children will return to Md Jan. 2001: plaintiff files for custody in NC NC jurisdiction? (assume no emergency)

18 UCCJEA. Chpt 50A Foley v. Foley, NC App (3/4/03) Error to enter custody order without jurisdictional findings Jurisdiction cannot be based upon consent of parties Parties do not waive objection to jurisdiction by entry of consent order

19 Initial Orders G.S. 50A-201. You only have jurisdiction to enter initial order if: N.C. has Home State jurisdiction, or There is no Home State and N.C. has significant connection/substantial evidence jur’d, or State with jurisdiction decides NC is the more convenient forum, or No state has jurisdiction (default)

20 Home State Jurisdiction State where child lived for at least six consecutive months immediately before the filing of the action. A period of “temporary absence” is part of the period G.S. 50A-102(7) Or, state that was the home state within six months of the filing, and one parent or person acting as parent continues to live in state G.S. 50A-201(a)(1)

21 UCCJEA Problem #5: David v. Ferguson, 153 NC App 482 (2002) COA rejected mom’s claim that NC not home state because children were domiciled in Md COA held NC “clearly” the home state because children resided here 6 months before filing Compare Pheasant v. McKibben, 100 NC App 379 (1990)(8 months in Ga. was “temporary absence” where parties agreed visit was to last only 2 weeks)

22 Custody Modification No modification unless substantial change affecting welfare of child Need findings of effect on child Hicks v. Alford, NC App (3/4/03): good findings Significant interference with dad’s visitation Child needs both parents Interference interfered with child’s relationship with dad

23 Paternity Davis v. Adams, 153 NCApp 512 Motion to set aside Acknowledgment and Order of Paternity – alleging fraud and mistake DNA test excluded him after signing COA held motion to be Rule 60(b)(1) or (3) Not a GS 110-132(a) or a Rule 12(b)(6) motion Motion barred because not filed within 1 year

24 Child Support Imputing Income Mason v. Erwin, NC App (4/15/03) Impute income only upon finding of voluntary depression in deliberate disregard of support obligation Early retirement while in good health along with bad payment history established deliberate disregard

25 Contempt: Problem #6 Defendant fails to pay child support until after show cause order issued and served. Pays all before contempt hearing. Clearly has and always had ability to pay. Can you hold him in contempt?

26 Contempt Cannot hold party in civil contempt if party has complied with court order before the contempt hearing Reynolds v. Reynolds, 147 NC App 566(2001), (rev’d on other grounds)(purpose of civil contempt is to force compliance) Ruth v. Ruth, NC App (5/20/03)(no civil contempt for keeping kids past end of visitation where mom returned them before contempt hearing) But you can award attorney fees. Ruth, Reynolds

27 Contempt: Problem #6 Criminal contempt OK – purpose is to punish. Reynolds Trial court imposed 30 days in jail “suspended” upon conditions: post $75,000 bond, pay plaintiff’s attorney fees, pay all future support on time Criminal contempt?

28 Contempt Reynolds, 356 NC 287 COA held contempt was civil because defendant could purge by complying with conditions Supreme court adopted dissent in COA Contempt was criminal because trial court imposed a determinate suspended sentence

29 Contempt Child support, custody, and some alimony orders can be enforced by civil contempt pending appeal of underlying order 50-13.4(f)(9)(child support). Guerrier v. Guerrier, NC App (12/31/02) 50-13.3(custody). Ruth v. Ruth, NC App (5/20/03) 50-16.7(j)(periodic payments of alimony)


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