Dear Carolyn,
I have a domestic violence protective order, but the one year expires next month. I am still afraid of her. She came at me with a knife, but luckily, I was able to get away. She still posts statements on Facebook that let me know she is still angry with me. What do I do for protection when the one year is up?
Carolyn Answers….
Prior to the beginning of each session of court, a calendar call takes place. Family law attorneys across the Triad are familiar with this process in which hearing dates are selected prior to an upcoming session of court. Though it may seem simple to select a date for your hearing and report it to the court, there are several factors that must be taken into account prior to selecting a hearing date.
The first consideration for calendar call is what issue has been calendared for hearing during the session. Is it one that will require a trial, such as custody or equitable distribution, or is it only a motion that needs to be heard, such as a motion for summary judgment or motion to compel? You must be clear on exactly what it is that has been noticed for hearing before selecting a hearing date.
A second factor that should be considered prior to calendar call is whether the issue is ready to be heard. Before a hearing can occur, the opposing party must be served with notice of the issue that you are asking the court to hear. Without proper notice to the opposing party, the court will not be willing to hear your case, and you will be forced to continue your hearing to another session of court. If you have only recently filed the complaint with the claim you want heard, you should also consider whether the opposing party has had time to respond to your complaint. If the opposing party’s time to answer has not expired, this could also cause the hearing on your claim to be delayed.
The status of the case as a whole is also important. There are some claims that should be heard before, or at the same time as, other claims. For instance, since the custody arrangement will affect the calculation of child support, it is often most efficient to hear child support either at the same time as custody, or after a custody order has been entered in order to prevent duplicative hearings.
Equitable Distribution, in a nutshell, is giving each party to a marriage what they are entitled regarding property acquired during the marriage. As one of the pillars of many divorce proceedings, it is commonly the most complex aspects, requiring extensive research into the lives of individuals going through a divorce. In some instances, the parties to a divorce can amicably agree as to how the property acquired during the marriage shall be distributed, and in some instances where parties fail to agree, distribution may be simple due to the nature, amount, and availability of information regarding marital property. In other instances, the parties cannot agree, and the marital assets are numerous, complex, and difficult to find; this situation can create a very tall task for attorneys in properly representing client interests.
A recent North Carolina case, Uli v. Uli (N.C. App., 2017), breaks down equitable distribution in an effort to comprehensively explain how North Carolina courts are to handle these types of claims. North Carolina courts conduct a three-step analysis to determine what is marital property, what is divisible property, and how to provide for an equitable distribution between the parties. First, the court must identify and classify the property as marital or separate based upon evidence presented regarding the nature of the asset. Next, the court must determine the net value of the marital property as of the date of separation. Lastly, the court must distribute the marital property equitably. Smith v. Smith, 433 S.E.2d 196, 202-203 (1993).
The primary issue presented in Uli is the classification of real property in dispute throughout the proceedings. Classifying property in an equitable distribution case is no walk in the park. Courts must determine whether property is marital or separate. Marital property is “all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of separation of the parties, and presently owned, except property determined to be separate property or divisible property…” Separate property is “all real and personal property acquired by a spouse before marriage or acquired by a spouse by devise, descent, or gift during the course of the marriage…” N.C. Gen. Stat. §50-20(b)(2015). “Acquired” is the key term in both definitions. North Carolina courts have adopted a “dynamic” interpretation of the term “acquired” as the courts recognized that acquisition is an on-going process of making payment for a property or contributing to the marital estate, instead of being fixed on the date that legal title to the property is obtained. Wade v. Wade, 330 S.E.2d 616 (1985). With this interpretation, the court realizes that property may have a dual nature consisting of both “separate” and “marital” qualities.
The two big classifications of property in all equitable distribution cases are “marital” and “separate” property. These are the ones the get all the attention and are subject to some of the most intense scrutiny and debate; however, there is a third area of property that is equally as important and can at times, prove to be a valuable player equitable distribution cases. Yes, I am talking about “divisible property!” Continue reading →
By Carolyn J. Woodruff, North Carolina Family Law Specialist
It is a privilege in our society to be in a civil courtroom. Courtrooms are places of decorum and are necessary to our system of justice and our freedom. Without witnesses, a trial cannot go forward. Without trials, our freedoms suffer. It is simply part of being a citizen of this great United States.
How does a courtroom look?
When analyzing custody, the issue of who has rights to custody of a minor is commonly focused on the biological parents of the child. In the eyes of the law, under the right circumstances, biological parents may be disfavored in congruence to “third party” individuals who assert rights to custody. Some of the most common third-party custody claims are, unsurprisingly, asserted from either the paternal or maternal grandparents. North Carolina and much of the south, is known for having strong family ties and deep communal roots where grandparents often play a large role in raising not only their children, but their children’s children. These relationships are often supplemental to the relationships between biological parents and their children, but in some situations grandparents end up being the de facto “mommy” and “daddy” to the minor children. Where biological parents display continued behavior of either unwillingness or inability to effectively parent their children, grandparents step in and seek legal intervention for the sake of the children.
When it comes to the law, courts have a duty to put the best interest of the children above all others. Under the Constitution of the United States, the biological parents of a minor have a protected interest in the custody, care, and control of their children. This is an incredibly high bar to overcome for third-party individuals seeking to assert custodial rights in opposition to those possessed by biological parents. The law provides for a vague and widely discretionary test for resolving custody disputes of this kind. While the interest of the children are intended to be promoted above all others, biological parents maintain an almost equally powerful interest that will more often than not prevail over that of third-party individuals unless it can be shown that the parents are unfit or have engaged in some “conduct inconsistent with their protected status.” Courts do not provide a bright line test in determining what conduct constitutes a violation, but some examples are behavior that leads to neglect of the children, abandonment of the children, and at times, the voluntary surrender of custody of the children. This behavior must have a negative impact on the child or constitute a substantial risk of such impact.
By: Leesa M. Poag, Attorney, Woodruff Family Law Group
In a typical child custody case, the mother and father of a child are seeking the intervention of the court to settle their dispute over who should be granted custody of their child. Though this is the situation most often facing family law attorneys throughout the Triad, the cases become more complex when one of the parties seeking custody of a child is not a biological parent of that child.
This is the situation that the North Carolina Supreme Court had to address in 2003 in the case of Owenby v. Young. In 1989, Fred and Priscilla Young were married, and two children were born thereafter. Four years after marrying, Fred and Priscilla divorced. Upon their separation, the former spouses executed a separation agreement that granted Ms. Young primary custody of the minor children, and secondary custody to Mr. Young.
For seven years, the parties acted and shared custody of the children under this agreement. However, in April of 2000, tragedy struck when Ms. Young was killed in a plane crash. At this time, the minor children were 10 and 11 years old. Following Ms. Young’s death, Mr. Young moved the children in with him and began to exercise sole custody of the children.
But this arrangement would not last long. After the children had lived with their father for a few weeks, Ms. Young’s mother, Priscilla Owenby, filed a complaint with the court seeking custody of the children on both a permanent and ex parte basis. An order was entered by the court that same day granting temporary custody of the children to Ms. Owenby. Mr. Young then filed an answer to Ms. Owenby’s complaint and a counterclaim for custody of the children. The case came on for hearing in the trial court in December of 2000.
By: Jennifer A. Crissman, Attorney, Woodruff Family Law Group
As contentious custody cases in the Piedmont progress, it is likely that a parent may be called “unfit.” In a legal context, this word has a specific meaning, and drastic consequences should the court find a parent unfit. In this second installment on standing to apply for custody, we will examine how a parent’s rights are affected when there is an allegation of “unfitness.”
The case of Raynor v. Odom is instructive when trying to determine whether a parent is “unfit.” Raynor v. Odom, 478 S.E.2d 655 (N.C. App. 1996). Raynor was decided several years after Petersen and discusses what analysis the Court should undertake when determining unfitness. The Raynor court held that although there is no specific list of findings that determines a parent is unfit, the court must look at the totality of the circumstances in determining whether a parent can care for the needs of their child.
The minor child in the Raynor case was removed from Plaintiff Mother’s care and temporarily placed with Intervenor Foster. When Foster gained temporary custody, she took the minor child to have a pre-school assessment. At the assessment, it was discovered that the child had an articulation disorder, and was not as advanced or matured as many of the child’s contemporaries. This fact was supported by the preschool screening report, an articulation evaluation, and a language therapy initial treatment plan. The trial court found that the child’s lack of development was a result of Plaintiff Mother not providing motivation, opportunity, or encouragement for the child’s normal and healthy development.
The trial court went on to catalog facts that demonstrated Plaintiff Mother’s unfitness to care for her child, including:
By: Jennifer A. Crissman, Attorney, Woodruff Family Law Group
If you have been involved with a highly contentious custody case in the Triad, you know that family members will start coming out of the woodwork to ask for custody of the minor children. This phenomenon is even more prevalent when the parents are not adequately caring for their children. This multi-part series will examine who can have standing to apply for custody of the minor children under North Carolina law, and the analysis the Court must follow. In part one of our series, we will examine the Constitutional Rights of the biological parents, which is the bedrock for all subsequent analysis by the Court.
The seminal North Carolina case on parents’ constitutional rights is Petersen v. Rogers, 445 S.E.2d 901 (N.C. 1994). At the outset, the Petersen court recognizes that the right to conceive and raise one’s children is an essential basic civil right which is far more precious than property rights. The Court then discusses in depth both the U.S. Supreme Court’s decisions regarding parental rights to custody, as well as North Carolina case law.
With regard to U.S. Supreme Court decisions, the Petersen Court notes that the integrity of the family unit has been recognized as a fundamental right protected by the U.S. Constitution. The Supreme Court has held “It is cardinal with us that the custody, care and nurture of the child reside first in the parents…”. Prince v. Massachusetts, 321 U.S. 158 (1944). This right has been protected both by the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, as well as under the Ninth Amendment by the U.S. Supreme Court.
Leesa M. Poag, Attorney, Woodruff Family Law Group
Recently, the North Carolina Court of Appeals has taken steps to hold medical professionals accountable when they become involved in legal proceedings. Family law attorneys in North Carolina are familiar with the process of a custody evaluation performed by a licensed psychologist. The Court of Appeals recently held that these licensed psychologists can be disciplined by their licensing board if their performance of the evaluation negatively affects clients, or even attorneys involved in a case.
Dr. Annette Baker was appointed by the court to complete a custody evaluation in relation to a modification of custody hearing. Dr. Baker initially met with both the mother and father involved in the case, as well as the minor children.
Initially, Dr. Baker was in communication with both parents, as well as the father’s attorney, Archie Futrell. When the evaluation began to drag out past the point that the parties had expected it to be completed, the mother, father, and Mr. Futrell all began what would be a long and arduous process of attempting to communicate with Dr. Baker. As the months dragged on and the evaluation still had not been completed, all parties involved became frustrated with Dr. Baker’s lack of progress and lack of communication. Mr. Futrell attempted to contact Dr. Baker via phone, emails and letters but received no meaningful communication from her through any medium. Continue reading →
North Carolina Divorce Lawyers Blog