Family Law Update Cheryl Howell September 29, 2004

New Web Page Titled: “Resources for District Court Judges”

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

Domestic Violence SL Legal Services for victims of domestic violence –50B cases –Chapter 50 custody actions –Other actions to ensure safety of client and client’s children Funded by court costs

Domestic Violence SL 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

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

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”

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?

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

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

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

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

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

“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

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 child’s safety Court shall consider statutory factors

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

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 ???

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.”

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

Amendment of GS (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)

Other provisions in SL 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

Custody SL , sec. 10 –Amends (a) –Person convicted of 1 st or 2 nd 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

Absolute Divorce New GS 50-10(e) [October 1] “The clerk, upon request of plaintiff, may enter judgment where plaintiff’s 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”

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

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

“Unlawful Conduct” Attempting to cause or causing bodily injury to employee Harassing employee –Refers to stalking criminal statute Threatening to physically injure employee –Reasonable person standard

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

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

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 shouldn’t be required, or –Harm likely if defendant gets notice

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

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

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 employer’s property Order can be entered by default but not without notice

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” ????

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

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

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

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

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

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

Cases Oakley v. Oakley: Alimony –cohabitation Urciolo v. Urciolo: Equitable Distribution –Distributive awards

Alimony (b): Alimony and PSS terminates upon cohabitation Oakley: Motion to terminate is pursuant to G.S (b) – not Rule 60

Cohabitation (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?

(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.

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”?

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

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

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

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