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Domestic Law Update

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, including orders previously renewed, on motion filed before expiration of current order Court may renew for good cause

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Domestic Law Update

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 Domestic Violence • Basden v. Basden, UNPUBLISHED • Court of appeals 12/03/02 • Order renewing protective order must contain findings of fact and conclusions of law • Use AOC form CV-306 with caution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