Family Law Case Update June 2004

1. Family Law Case UpdateJune 2004 Cheryl Howell Institute of Government howell@iogmail.iog.unc.edu 919-966-4436

2. Custody Modification • Need 3 conclusions: • Substantial change • Effect on child • Best interest

3. Custody modification • Shipman, NC Supreme Court (October 2003) • Order must show “nexus” between change and welfare of child

4. Self-Evident Effects • Dad’s lack of support = lack of financial resources • Mom’s unstable home = denial of security • Mom’s deceitful denial of dad’s and grandma’s visitation = denial of benefits of contact

5. Non-self-evident Effects • Parent’s • Relocation • Cohabitation • Change in sexual orientation • Remarriage • Improved finances

6. Non-self-evident Effects • Need direct evidence of effect • Example: “assessments of child’s mental well-being by a professional, school records, child or parent.”

7. Examples • Jordan v. Jordan, Court of Appeals (Jan. 2004) • Child “emotionally harmed” • Dreyer v. Smith, Court of Appeals (March 2004) • Change “will likely have an effect”

8. Summary • Need to conclude there has been an effect on welfare of child • Need findings re: the nexus • Need evidence but not necessarily expert testimony

9. Visitation • Moore v. Moore, Court of Appeals (October 2003) • Cannot terminateall parental contact without finding parent has waived his/her constitutional protections set out in Troxel and Price v. Howard

10. Visitation • G.S. 50-13.5(i): • “[T]he trial judge, prior to denying a parent the right of reasonable visitation, shall make written findings that parent is unfit or that visitation is not in the best interest of the child.”

11. Visitation • How does Moore affect supervised visitation? • Compare Cox v. Cox 133 NC App 221 (1999) and Hinkle v. Hartsell 131 NC App 833 (1998)

12. Custody modification • Custody decision announced in open court Nov. 19, 2001 • Motion to modify filed May 3, 2002 • Nov. decision signed by judge and filed on May 13, 2002 • Motion to modify granted by order entered May 23, 2002 • Problem?

13. Carland v. Branch • Custody order not entered or enforceable until written, signed and filed • Rule 58: Entry of Judgment • Can’t modify based upon a motion filed before original order is entered

14. Jurisdiction • Mom and kids leave NC for Vermont in August 2001 • Mom and kids move to back to NC July 2, 2002 • Dad files in Vermont July 3, 2002 • Mom files in NC in August 2002 • NC or Vermont the home state?

15. Chick v. Chick • Home state defined in G.S 50A-102(7): • “State in which a child lived with parent or person acting as parent for at least 6 consecutive months before commencement of action. … A period of temporary absence of any of the mentioned persons is part of the period.”

16. Temporary Absence • Chick v. Chick: Court of appeals adopts “totality of the circumstances” test • Consider: • Intent of parties • Length of absence • All other relevant circumstances

17. Use of law enforcement • Absent circumstances within G.S. 50A-311, there is “no statutory basis for [court to] invoke participation of law enforcement officials in producing children.” • Chick v. Chick, COA June 1, 2004

18. G.S 50A-311 • Court may issue warrant to take physical custody of a child only upon: • Filing of verified petition • Testimony by petitioner or other witness • Finding by court that child “is imminently likely to suffer serious physical harm or be removed from the State.”

19. Equitable Distribution • Disability payments • Finkle, Court of Appeals (January 20, 2004) • Halstead, Court of Appeals (June 1, 2004)

20. Non-military: Finkle • Classify by analytic approach • What does benefit replace? • “True disability” payments are separate property • Retirement benefits are marital to extent earned during marriage • True disability is a distribution factor

21. Military disability: Halstead • Federal law prohibits distribution • Can consider payments in distribution • When member elects disability – court cannot (completely?) offset loss of retirement pay by increasing spouse’s share of remaining retirement pay • Cf. White v. White 152 NC App 588 (2002)

22. Domestic Violence • Bryant v. Williams Court of Appeals (December 2003) • Trial court had no authority to enter consent judgment that dismissed “all claims pursuant to G.S 50B”

23. Bryant v. Williams • “Trial court’s authority to enter a protective order or approve a consent judgment is dependent upon finding that an act of domestic violence occurred and that the order furthers the purpose of ceasing acts of domestic violence.”

24. Child support • Paternity • Brooks v. Davis - Blood tests not ordered by court through GS 8-50.1(b) need proof of chain of custody • Contempt • Trivette v. Trivette – If contempt initiated by obligee rather than show cause, burden of proof falls on obligee • Service by publication • Cotton v. Jones - Judgment void if no Rule 4(j1) affidavit

25. Substitution of judge • Rule 63 – (2001 version) • “If by reason of death, sickness or other disability, resignation, retirement, expiration of term, removal from office, or other reason, a judge before whom an action was tried or a hearing has been held is unable to perform the duties … then duties, including entry of judgment, may be performed by the chief district court judge.”

26. Substitution of judge • Lange v. Lange, NC Supreme Court (Dec. 2003) • Chief judge has discretion to sign judgment or order new trial • In re Savage, NC Court of Appeals (March 2003) • Chief judge cannot sign order but must conduct new trial