Family Law & Domestic Violence

1. Family Law & Domestic Violence Poverty Law Training for “Hotline” Pro Bono Attorneys Friday, May 23, 2014

2. Domestic Violence

3. DV Victim as a Client • This may be the victim’s first attempt to leave her abuser or utilize the legal system. • Nevertheless, the legal system may be another deterrent for victims who find it confusing, expensive. • Victims may be fearful or anxious and unable to proceed without legal assistance. • Legal assistance and/or representation improves the likelihood of increased victim safety and ability to leave her abuser.

4. Cycle of Violence

5. Long-term Effects of DV on Children • Post-Traumatic Stress Disorder • Low self-esteem • Depression/Anxiety • Criminal behavior • Drug & alcohol addictions • Boys who witness DV are more likely to become abusers • Girls who witness DV are more likely to become victims

6. Studies of Effects on Children • Slightly more than half of female victims of intimate violence live in households with children under age 12.* • It is estimated that anywhere between 3.3 million and 10 million children witness domestic violence annually. Research demonstrates that exposure to violence can have serious negative effects on children’s development.** • Children who had been exposed to violence suffered symptoms of post-traumatic stress disorder, such as bed-wetting or nightmares, and were at greater risk than their peers of having allergies, asthma, gastrointestinal problems, headaches and flu.*** *Lawrence A. Greenfield et al.,U.S. Dep't of Just., NCJ 167237, Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouse, Boyfriends, and Girlfriends (1998). **Sharmila Lawrence, National Center for Children in Poverty, Domestic Violence and Welfare Policy: Research Findings That Can Inform Policies on Marriage and Child Well-Being 5 (2002). ***Sandra Graham-Bermann & Julie Seng, Violence Exposure and Traumatic Stress Symptoms as Additional Predictors of Health Problems in High-Risk Children, 146 J. of Pediatrics 309 (2005).

7. Domestic Violence Protective Order • “DVPO,” “50B,” restraining order, etc. • Requires a “personal relationship” between the Plaintiff and Defendant • Defendant must have committed “an act of domestic violence” against Plaintiff or minor child residing with Plaintiff • Specific relief must be requested

8. Personal Relationship Required • Law requires a “personal relationship” between the abuser and victim. • Victim must be one of the following: • Current or former spouse • Current or former household members • Persons related as parents/children or grandparents/grandchildren • Persons with a child in common • Persons of the opposite sex who are or have been in a dating relationship

9. Why are DVPOs Necessary? • In recent years, an intimate partner killed approximately 33% of female murder victims.* • In NC in 2008, there were 79 domestic violence homicides.** • Reports indicate some 86% of the women who received a protection order state the abuse either stopped or was greatly reduced.*** • Victims leave their abusers several times (6-8 times) before eventually leaving for good. With education of DV, successful prosecution of offenders, and laws protecting victims of DV, this number is going down. * Callie Marie Rennison, U.S. Dep't of Just., NCJ 197838, Bureau of Justice Statistics Crime Data Brief: Intimate Partner Violence, 1993-2001, at 1 (2003) ** http://www.nccadv.org/homicides_partners_2008.htm *** James Ptacek, Battered Women in the Courtroom: The Power of Judicial Response (1999)

10. Process of Obtaining DVPO • Go to county courthouse and ask which clerk handles 50Bs or DVPOs (in Bun. Co. it is Travis Miller) • Fill out and file Complaint • Seek an Ex Parte Order – in Bun. Co. the victim/Plaintiff must be on the 4th floor at 8:30am or 1:30pm with paperwork completed in order to go before a judge • Service on Defendant • DVPO hearing within 10 days of entry of Ex Parte Order

11. Remedies under a DVPO Defendant may be ordered to do any of the following: Have no contact with Plaintiff (cannot go by his/her work, home, or anywhere s/he may be) Not assault, harass, threaten, abuse, or interfere with Plaintiff or the parties’ minor children Not threaten a member of Plaintiff’s family/household Stay away from minor child’s school Attend/complete abuser treatment program Surrender firearms to the Sheriff Prohibited from purchasing or possessing a firearm Other prohibitions or requirements deemed necessary to protect Plaintiff and/or minor children

12. Remedies under a DVPO (cont’d) Plaintiff may be awarded any of the following: Temporary custody of the minor children (1-year) Child and/or spousal support to be paid by Defendant Exclusive use/possession of the shared residence of the parties (and Defendant can be evicted) Assistance by law enforcement in returning to the shared residence to gather clothing, toiletries, and tools of trade Exclusive use/possession of shared vehicle Other relief deemed necessary to protect Plaintiff and/or minor children

13. Child Custody

14. Child Custody – “Best Interest of the Child” • “Continuity of care” – who has been the primary provider? • Relationship of the child to each of the parents • Age of child • Wishes of child as to his/her custodian (over 12 or so) • Child’s adjustment to home, school, and community • Mental and physical health of all individuals involved • Domestic violence by a parent against other parent or child • Chemical dependency on the part of either parent • Criminal convictions • Ability to provide for the child

15. Common Custody Arrangements • Legal Custody v. Physical Custody: “Legal custody” indicates that the parties will jointly make decisions regarding the child’s education, health, religion, etc. • Common Custody Awards: assume that parents will share physical custody and make most decisions regarding the children together • Joint Custody: shared physical custody of the child, often very close to 50/50, sometimes week on/week off • Sole Custody: one parent has physical custody of the child, and the other parent has some visitation • Primary/Secondary Custody: often a more subtle way of expressing “sole custody”; one parent has the majority of the time and the other has scheduled periods of visitation

16. Modification of Custody Order • Party must allege and prove that there has been a “substantial change in circumstances” (either good for bad) • One parent has moved a considerable distance • Domestic violence has occurred in the presence of child • One parent was charged with DWI or possession, etc. • Non-custodial parent has obtained adequate housing • Even if there has been a “substantial change in circumstances,” the requested changes to the Order must be in the best interest of the child

17. Uniform Child Custody Jurisdiction Act (UCCJEA) Terms you may want to be familiar with if client has a custody issue… • “Home State” Jurisdiction: State is the child’s home state at the time of commencement of the proceedings or was child’s home state within the previous six months prior to initiation of suit. • Significant Connections/Substantial Evidence: Best interest of child that a court of this state assume jurisdiction because the child and his/her parent(s) have a significant connection to the state, and there is substantial evidence within the state concerning the child’s present or future care, security, education, and personal relationships. • Emergency Jurisdiction: Child is physically in the state, and the child has been abandoned, or an emergency exists necessitating the protection of the child because s/he has been subjected to mistreatment, abuse, or has been neglected. • Last Resort: No other state can meet one of the above tests, or another state can meet at least one of the tests, but has refused or declined to take jurisdiction over the case, believing that the other state is a more appropriate forum, and it is in the best interest of the child that the other court assume jurisdiction.

18. Custody “Agreements” v. Orders • Parents may reach agreement for child custody, and this agreement may be written or oral. Such an agreement is binding as between the parties and is only enforceable in a breach of contract action for specific performance. Often, custody arrangements are set forth in separation agreements. • If a parent files for custody, the court will schedule mandatory child custody mediation. If the parents are able to come to a “parenting agreement” during the mediation, that agreement will be signed by a District Court Judge and will become a Court Order. • Buncombe County Courthouse has pro se custody forms: initiating an action; Answer and Counterclaim; Motion for Contempt; and, Motion to Modify.

19. Child Support • Parents are required by statute (N.C. Gen. Stat. § 50-13.4) to provide financial support for their minor children • Support payments can be lump sum, periodic, or by transfer of title or possession of personal property of any interest therein, or a security interest in or possession of real property, as the court may order. • Child support can be established in a custody action or through the North Carolina Child Support Enforcement Agency (828-232-1416). • Child support is determined using a percentage system of the parent’s income and overnights spent with child. • Orders can require parents to provide insurance for child.

20. Non-Parent Rights to Children • Grandparents may have rights to visitation: “Grandparent Visitation Statutes” of North Carolina are N.C. Gen. Stat. §§ 50-13.1(a), 50-13.2(b1), 50-13.5(j), and 50-13.2A. • “…absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail.” Peterson v. Rogers, 337 N.C. 397 (1994). • N.C. Gen. Stat. § 50-13.1(a) “grants grandparents the right to bring an initial suit for custody when there are allegations that the child’s parents are unfit.” Sharp v. Sharp, 124 N.C. App. 357 (1996). • In McIntyre v. McIntyre, 341 N.C. 629 (1995),the N.C. Supreme Court concluded that the broad language of N.C. Gen. Stat. § 50-13.1(a) cannot be read to create a cause of action for grandparents seeking visitation against parents “whose family is intact and where no custody proceeding is on-going.”

21. Separation & Divorce

22. Separation • Often clients use the term “legal separation” or “separation papers” when describing what they think they need as a prerequisite for a divorce. • A “legal separation” is a “Divorce from Bed and Board” in North Carolina, a judicial decree of separation based on the fault of one spouse (e.g., physical violence or drug use). • However, North Carolina does not require a judicial decree of separation. Parties must remain separate and apart for at least one (1) year before filing for an Absolute Divorce. (Note: this means living under separate roofs and not just separate bedrooms). • “Separation papers,” are nothing more than a separation agreement. It is necessary but can be helpful in distributing property, establishing a custody schedule, and setting child support payments.

23. Divorce • North Carolina is a “no-fault” or “absolute divorce” jurisdiction. All that is necessary is the one (1) year separation. • Either spouse must have been a resident of NC for at least six (6) months prior to the filing of the divorce action. • A divorce judgment will cut off the parties’ rights to file an action for Alimony or Equitable Distribution. Any pending action will survive. • Divorce judgments do not affect custody orders or each parent’s rights to any children born of the relationship. • Separation agreements can be merged and incorporated into a divorce judgment, changing characteristics from a contract to a Court Order enforceable by the enforcement powers of the Court. • If the client cannot afford to hire an attorney, s/he may purchase pro se absolute divorce packets at the Buncombe County Courthouse.

24. Equitable Distribution • It is a rebuttable presumption that property acquired after the date of marriage and before the date of separation are classified as “marital property,” subject to distribution by the Court. • Property acquired before the date of marriage or acquired by a spouse by way of inheritance or separate gifts during the marriage are classified as “separate property.” • Property acquired after the date of separation but before the final distributive award is known as “divisible property.” • Debt can also be marital or separate and is taken into account. • Property may change forms (e.g., from stocks to cash to personal property, etc.). North Carolina follows the “Source of Funds” rule. For example, if separate property (cash) is used to purchase property (even during marriage), it remains separate property. • If the Court determines that an unequal distribution would be equitable, the Court considers several factors set forth in N.C. Gen. § 50-20(c). • Court values property for distribution as the FMV at date of separation.

25. Spousal Support • “Post Separation Support”: a financial award based on the needs of the dependent spouse between the date of separation and the date of an alimony award. • “Alimony”: a financial award for the support and maintenance of the dependent spouse paid by the supporting spouse. This is a Court Order that goes beyond the date of divorce until a set time or event (e.g., remarriage). • Factors taken into account: marital misconduct, earnings and earning capacities of parties, duration of marriage, standard of living, other financial obligations, needs of spouses, physical/mental/emotional condition, etc. • North Carolina is the only state that uses the term “illicit sexual behavior” and allows it to be a bar to alimony.

26. Emancipation

27. Emancipation • There are two (2) ways for minors to be emancipated: they can marry or they can petition for a judicial decree of emancipation if they are over the age of 16. • Minors may marry at age 16 or 17 with the consent of the parent with whom they live or their legal guardian. Girls who are ages 12 to age 17 who are either pregnant or have given birth to a child, may marry with the consent of the parent with whom they live, their legal guardian, or DSS. • The factors considered by the judge and the procedure are set forth in N.C. Gen. Stat. § 7B-3501. • Emancipation is final and irrevocable. The minor will be treated as an adult for contractual and litigation purposes. The minor’s parents are no longer legally/financially responsible for him/her.

28. Thank You! Erin Wilson Mountain Violence Prevention Project Pisgah Legal Services P.O. Box 2276 Asheville, NC 28802 (828) 253-0406 Erin@pisgahlegal.org www.pisgahlegal.org