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Family Law Update

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Domestic Violence. Child custody. Absolute Divorce. Judgments by Clerk ... If court finds domestic violence in Chapter 50 custody case ... – PowerPoint PPT presentation

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Title: Family Law Update


1
Family Law Update
  • Cheryl Howell
  • September 29, 2004

2
New Web Page
  • www.dcjudges.unc.edu
  • Titled Resources for District Court Judges

3
Legislation
  • Domestic Violence
  • Child custody
  • Absolute Divorce
  • Judgments by Clerk
  • 2 new actions for no-contact orders
  • Workplace violence protection
  • Victims of unlawful sexual conduct

4
Domestic Violence SL 2004-186
  • Legal Services for victims of domestic violence
  • 50B cases
  • Chapter 50 custody actions
  • Other actions to ensure safety of client and
    clients children
  • Funded by court costs

5
Domestic Violence SL 2004-186
  • Modifies custody law in context of
  • 50B ex parte requests
  • final 50B orders
  • Chapter 50 cases
  • Applies to actions filed on or after October 1,
    2004

6
Ex parte 50B orders 50B-2(c)
  • Ex parte order appropriate if court finds danger
    of domestic violence against aggrieved party or a
    child
  • Relief granted as necessary to protect aggrieved
    party or minor child
  • Except ex parte temporary custody requires more

7
Ex parte custody 50B-2(c)
  • Existing standard child exposed to substantial
    risk of bodily injury or sexual abuse
  • New standard child exposed to substantial risk
    of physical or emotional injury or sexual abuse

8
Ex parte custody in 50B
  • Emotional abuse
  • Not defined by statute
  • Only need to find exposure to substantial risk
    not emotional injury
  • Types of evidence?

9
Ex parte custody 50B-2(c)
  • Upon finding risk and upon request court must
    consider ordering defendant to
  • Stay away from child
  • Return child to parent or person in loco parentis
  • Not remove child from parent or person in loco
    parentis

10
Ex parte custody 50B-2(c)
  • Only include those provisions in protective order
    if they are
  • In the best interest of the child, and
  • Necessary for the safety of the child

11
Ex parte visitation 50B-2(c)
  • Can order contact if in best interest of child
  • Order must be designed to protect child and
    aggrieved party
  • Order must specify terms of contact

12
Ex parte custody in 50B Summary
  • Physical custody provisions included only if
  • Child is exposed to substantial risk of
    emotional, physical or sexual abuse, and
  • Order is in best interest of child, and
  • Order is necessary for safety of child

13
Ex parte 50B custody Magistrates
  • Can issue ex parte with physical custody
    provisions subject to same standards as judges
  • If authorized by Chief Judge
  • When court not in session and no judge available
    for 4 or more hours
  • Must have ex parte hearing before judge by end of
    next court day

14
Final 50B orders
  • 50B-2(c) when ex parte entered, hearing must be
    held within 10 days of order or 7 days of
    service, whichever later
  • Hearing is for emergency relief or the final
    order
  • Not an appeal or review of the ex parte

15
50B-3(al) new statute
  • Custody following notice or service
  • Upon request, court shall consider custody and
    visitation
  • Decision to be based on best interest of child
  • particular consideration to childs safety
  • Court shall consider statutory factors

16
50B-3(a1) Visitation
  • If custody ordered, court must consider
    visitation
  • Visitation ordered only if in best interest of
    child
  • Order must provide for safety and well-being of
    child and aggrieved party

17
Visitation 50B-3(a1)(3)
  • Statutory list of methods to ensure safety and
    well-being of both child and aggrieved party
  • Dates and times must be spelled out
  • Person or center supervising visitation must
    accept responsibility and acknowledge
    accountability ???

18
Renewal of Custody Provisions
  • 50B-3(b) temporary award of custody entered as
    part of a protective order may not be renewed to
    extend a temporary award of custody beyond the
    maximum one-year period.

19
50B-3(b) Relationship to Chapter 50
  • 50B temporary custody is without prejudice
  • Subsequent Chapter 50 custody orders supersede
    any 50B custody provision

20
Amendment of GS 50-13.2(b)
  • If court finds domestic violence in Chapter 50
    custody case
  • Custody order must protect child and victim of
    violence
  • Court must follow new GS 50B-3(a1), (2) and (3)

21
Other provisions in SL 2004-186
  • Clerks shall provide private area for persons
    seeking 50B orders
  • Training
  • Requests Chief Justice to adopt rules regarding
    minimum standards for domestic violence training
    for district court judges
  • Orders AOC to study issue of training for all
    court personnel

22
Custody
  • SL 2004-128, sec. 10
  • Amends 50-13.1(a)
  • Person convicted of 1st or 2nd degree rape has no
    standing to seek custody of child born as result
    of that criminal act
  • Applies to offenses committed on or after
    December 1, 2004

23
Absolute Divorce New GS 50-10(e) October 1
  • The clerk, upon request of plaintiff, may enter
    judgment where plaintiffs only claim is for
    divorce, or divorce and resumption of name, and
    defendant has been defaulted for failure to
    appear, has answered admitting allegations, or
    filed waiver, and defendant is not an infant or
    incompetent

24
Civil No-Contact Orders
  • Workplace Violence Prevention
  • SL 2004-165
  • Covers all employees
  • Victims of Sexual Assault or Stalking
  • SL 2004-194
  • Excludes victims covered by 50B

25
Workplace Violence Prevention
  • New Article 23 to Chapter 95
  • Creates civil action in district court
  • Filed by employer on behalf of employee
  • Employee has suffered unlawful conduct
  • To be carried out or carried out at workplace

26
Unlawful Conduct
  • Attempting to cause or causing bodily injury to
    employee
  • Harassing employee
  • Refers to stalking criminal statute 14-277.3
  • Threatening to physically injure employee
  • Reasonable person standard

27
Remedy
  • Order effective up to one year
  • Renewable for good cause
  • No-contact provisions that prohibit contact
    with employee at workplace
  • Violations punished by contempt
  • Probably criminal as well as civil but unclear

28
Procedure
  • Must be filed where conduct occurred
  • Verified complaint or motion in existing case
  • Either requires new summons
  • Defendant has 10 days to Answer
  • Service only by Sheriff or publication
  • If no ex parte entered, no provision regarding
    when case must be heard

29
Ex parte Orders
  • Allowed only if
  • Complaint or affidavit shows immediate injury
    will occur before hearing, AND
  • Either
  • Written certification of attempt to give notice
    and why notice shouldnt be required, or
  • Harm likely if defendant gets notice

30
Ex parte order
  • Expires at end of 10 days
  • Can be extended 10 days, more with consent
  • Must state why notice was waived
  • When court not in session, ex parte request
    considered by any judge or magistrate designated
    by chief judge

31
Ex parte order
  • If entered, hearing must occur at earliest
    possible time
  • Defendant can request dissolution upon 2 days
    notice to plaintiff
  • At hearing, judge shall dissolve if plaintiff
    fails to go forward on permanent order

32
Permanent order
  • Entered upon finding employee suffered unlawful
    conduct to be carried out or carried out at
    workplace
  • No physical injury required to employee or
    employers property
  • Order can be entered by default but not without
    notice

33
Effective Date
  • December 1, 2004
  • Applies to actions that give rise to civil
    no-contact orders issued under this act on or
    after that date ????

34
Unlawful sexual conduct
  • Creates new Chapter 50C
  • Has same effective date as Workplace Violence
    legislation
  • Excludes persons in a personal relationship as
    defined by 50B

35
Chapter 50C
  • Allows district court
  • To issue civil no-contact order
  • When defendant commits unlawful conduct upon
    plaintiff, or a minor child or incompetent person

36
Unlawful Conduct
  • Nonconsensual sexual conduct
  • Defined in 50C-1
  • Stalking
  • Defined in 50C-1 refers to criminal stalking
  • No physical injury required

37
Remedy
  • Order effective for up to one year
  • Renewable for good cause
  • No-contact provisions set out in 50C-5
  • Violations punished by contempt
  • Probably both criminal and civil but unclear

38
Procedure
  • Filed where either party resides, or where
    conduct occurred
  • Verified complaint or motion in existing case
  • No court costs allowed for filing, service of
    process or orders
  • Plaintiff can request that address be omitted
    from court documents

39
Procedure
  • Defendant has 10 days to Answer
  • Service only by Sheriff or publication
  • If no ex parte entered no provision regarding
    when claim is heard
  • Procedures and requirement for ex parte orders
    identical to Workplace Violence Prevention Act

40
Cases
  • Oakley v. Oakley Alimony
  • cohabitation
  • Urciolo v. Urciolo Equitable Distribution
  • Distributive awards

41
Alimony
  • 50-16.9(b) Alimony and PSS terminates upon
    cohabitation
  • Oakley Motion to terminate is pursuant to G.S.
    50-16.9(b) not Rule 60

42
Cohabitation 50-16.9(b)
  • Two adults dwelling together continuously and
    habitually in a private heterosexual
    relationship, even if not solemnized by marriage,
    or a private homosexual relationship
  • So is spending the night together frequently
    sufficient to prove cohabitation?

43
50-16.9(b)
  • Cohabitation is evidenced by the voluntary
    mutual assumption of those marital rights,
    duties, and obligations which are usually
    manifested by married people, which include, but
    are not necessarily dependent on, sexual
    relations.

44
Oakley v. Oakley
  • Number of nights spent together, standing alone,
    not sufficient to show cohabitation
  • Need evidence of assumption of marital rights,
    duties and obligations
  • Look to cases on reconciliation
  • Have parties held themselves out as man and
    wife?

45
Distributive Awards 50-20(e)
  • Subject to presumption that equal is equitable,
    it is presumed that in-kind distribution is
    equitable
  • Presumption must be rebutted by greater weight of
    evidence
  • If rebutted, distributive award allowed to
    achieve equity

46
Urciolo v. Urciolo
  • Need findings and conclusions that presumption
    has been rebutted
  • If rebutted, must find sufficient liquid assets
    to pay award

47
Distributive Awards
  • To rebut presumption
  • Property is a closely-held business, or
  • Property is not susceptible to in-kind
    distribution, or
  • Award is necessary to facilitate, effectuate, or
    supplement distribution, or
  • In-kind is not practical

48
Distributive Award
  • Need to identify liquid assets
  • Ability to pay is insufficient
  • See Smith v. Smith, 111 NC App 460 no present
    liquid assets so gave 10 years to pay upheld on
    appeal
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