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What is Discovery in North Carolina Child Custody Cases?

It is common practice for parties in a case to exchange evidence and information. This process is called discovery. There are strict rules and requirements for discovery, and failing to comply with requests from the opposing party may adversely affect your case.

Heijmen v. Heijmen

In the case of Heijmen v. Heijmen, the mother’s failure to produce documents requested in discovery was not supported by the trial court or by the appeals court.

Following their divorce, Mother and Father agreed on child custody and support terms. Their agreement stayed in effect for two years, at which point Father filed to amend the custody agreement, with Mother subsequently filing to amend as well. Father served Mother with a form of discovery called requests for production of documents, but Mother refused to comply.

An Amended Order to Compel was entered requiring Mother to produce the requested documents, and she appealed.

Appealing Interlocutory Orders

A temporary order is called interlocutory, and these types of orders cannot usually be appealed immediately following entry. An order to compel is considered interlocutory. Mother’s appeal in this case was allowed to be heard because she claimed the order to compel affected a substantial right, which means a temporary order can be appealed.

Mother’s appeal was based on her assertion that the requests for production violated her statutory privileges, including attorney-client privilege and other protected information.

North Carolina Law and Discovery Requests

Requests for production of documents are among the discovery methods allowed in North Carolina. Other examples include interrogatories, depositions, and requests for admission. State law allows parties in a case to withhold information in discovery if it is privileged or considered trial-preparation material.

Despite Mother’s assertion in Heijmen, the appeals court upheld the trial court’s entry of an order compelling her to respond to discovery. The order had several safeguards in place to protect Mother’s information, such as:

  • A court-appointed forensic expert would conduct a review of the material rather than Father
  • Mother would have a chance to conduct a privilege review
  • The trial court would inspect any dispute about the information in camera

Another concern Mother brought up in her appeal was that the discovery requests violated Rule 26 of the Rules of Civil Procedure. This Rule outlines the general provisions of discovery in North Carolina, including the scope and limitations of requests. Mother alleged that the requests were not relevant, but the appeals court stated that discovery is allowed as long as the information sought is reasonably believed to lead to acquiring admissible evidence.

North Carolina Child Custody Lawyer

The discovery process in child custody cases often involves private and personal information, and it is vital that you know whether or not you are required to share that information. You are not required to have an attorney represent you. However, having the guidance of a trusted family law attorney can be beneficial when issues as important as child custody are on the line.