Family Law Case Update June 2004 Cheryl Howell Institute of Government

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

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

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

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

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.”

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”

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

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

Visitation G.S (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.”

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)

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?

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

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?

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.”

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

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

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.”

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

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

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)

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”

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.”

Child support Paternity Brooks v. Davis - Blood tests not ordered by court through GS (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

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.”

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