What is a “Motion in the Cause?”

In North Carolina family law practice, litigation is started with a summons and complaint being filed, followed by an answer and counterclaims and finally, a reply to the counterclaims.   This series of filings is collectively referred to as the pleadings in the case.

Claims in North Carolina family law cases can also be made in the form of a motion in the cause.   For example, even if the issue of child custody is not raised in the pleadings, a party may file a motion and ask the court to award child custody.  This is a motion in the cause.

Another example is that of equitable distribution.  In North Carolina equitable distribution law, there isa rule that a claim must be made for equitable distribution prior to divorce or the right of a party to ask for an equitable distribution is lost forever.    Even if the pleadings are closed, a party may file a motion in the cause for equitable distribution any time up until the entry of the divorce judgment in a case.

Several types of claims may be made by motion in the cause.   Alimony, postseparation support, equitable distribution, child custody, child support and attorneys fees all may be made by motion.  Like equitable distribution, claims for alimony and postseparation support must, heover, be made prior to the entry of the absolute divorce.

 

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Scott Allen is a divorce attorney in Raleigh, NC with over twenty years of experience in all areas of family law litigation and settlement. He can be reached at 919.863.4183 and his email is sallen@allenspence.com

Should I Move My Child Out of NC?

Getting Started - Raleigh Elder LawIs it a wise decision to simply move out of your home, leave your spouse, and move your child out of state?   Without proper planning and advice, the answer is absolutely not.  If you move a child out of state you will open yourself up to a claim for emergency child custody.  If you leave the home without sufficient legal justification, your spouse may say you abandoned him or her.

There are lots of reasons why you might want to move:   you might be in an abusive relationship or the other parent might be mistreating your children.  These are valid and legitimate concerns and reasons for you to want to leave.  They may also be reasons to get the courts involved.

If you are thinking of moving out of North Carolina with your child, you should get legal advice. Meet with a lawyer, go over what has been happening in your home, and set up a plan to move forward.   Do those things before you move out of state with your child.

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Scott Allen is a child custody attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement.  He can be reached at 919.863.4183.

 

 

Mediations and Mediators

I frequently get asked about mediation.  What is it?  What does it cost? How can I get my spouse to mediate? What happens in a mediation? Let’s explore these issues in the context of a North Carolina divorce case.

What is Mediation?

Mediation is a dispute settlement process wherein a neutral person (the mediator) seeks to find areas of compromise between the sides in a case on the issues brought to mediation.  For example, in a child custody case where the parents can’t agree on how to share custody, the mediator tries to get the parties to recognize the benefits of settlement, the risks of letting a judge make a decision, and explore the areas of common ground.   A mediator is not a judge and will not make a decision; the mediator works as a facilitator.  Unlike a court case, which is public record, the mediation process is confidential.

What does Mediation Cost?

In Wake County, a private mediator for a family law case will be in the range of $225 per hour (sometimes more, sometimes a little less).  A successful mediation can occur in anything from a couple of hours to all day.  It depends on the complexity of the issues and the positions of the parties. A successful mediation is almost always less costly than litigation.  Furthermore, the cost of the private mediator is usually split equally between the husband and wife.

How Can I get My Spouse to Mediate?

If you have an attorney, talk to him or her about mediation and have them make a proposal to mediate the case.   Usually all you have to do is ask.  Plant the seed that you want to resolve your differences amicably and without the cost and stress of litigation.

What Happens in a Mediation?

They usually go something like this:

  • You arrive at the mediator’s office and meet your lawyer there.
  • You might arrive a little early to review last-minute matters (you and your lawyer should have mostly prepared prior to the mediation).
  • The mediator will do an introductory session, explain what will happen, and have you sign the mediation contract if you have not already.
  • The process will begin with the mediator talking to each side and understanding what the issues are.
  • Once the mediator gets an idea of the issues, he or she will start carrying proposals back and forth.  The goal is to narrow issues and get to compromise.
  • A good mediator will explore options and avenues for compromise.
  • A good mediator listens to understand what the issues are and makes each side feel like they are being heard.
  • These efforts will continue as long as progress is being made.
  • If successful, the parties will sign an agreement at the conclusion of the mediation.

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Scott Allen is a trained mediator and divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement.  He can be reached at 919.863.4183.

Parent Coordinator in NC Child Custody Cases

Statutory authorization for a parent coordinator is set out in NCGS 50-90.

§ 50-90. Definitions.
As used in this Article, the following terms mean:
(1) High-conflict case. – A child custody action involving minor children
brought under Article 1 of this Chapter where the parties demonstrate an

ongoing pattern of any of the following:
a. Excessive litigation.
b. Anger and distrust.
c. Verbal abuse.
d. Physical aggression or threats of physical aggression.
e. Difficulty communicating about and cooperating in the care of the
minor children.
f. Conditions that in the discretion of the court warrant the appointment
of a parenting coordinator.
(2) Minor child. – A person who is less than 18 years of age and who is not
married or legally emancipated.
(3) Parenting coordinator. – An impartial person who meets the qualifications of
G.S. 50-93. (2005-228, s. 1.)

§ 50-91. Appointment of parenting coordinator.
(a) The court may appoint a parenting coordinator at any time during the proceedings of
a child custody action involving minor children brought under Article 1 of this Chapter if all
parties consent to the appointment. The parties may agree to limit the parenting coordinator’s
decision-making authority to specific issues or areas.
(b) The court may appoint a parenting coordinator without the consent of the parties
upon entry of a custody order other than an ex parte order, or upon entry of a parenting plan
only if the court also makes specific findings that the action is a high-conflict case, that the
appointment of the parenting coordinator is in the best interests of any minor child in the case,
and that the parties are able to pay for the cost of the parenting coordinator.
(c) The order appointing a parenting coordinator shall specify the issues the parenting
coordinator is directed to assist the parties in resolving and deciding. The order may also
incorporate any agreement regarding the role of the parenting coordinator made by the parties
under subsection (a) of this section. The court shall give a copy of the appointment order to the
parties prior to the appointment conference. Notwithstanding the appointment of a parenting
coordinator, the court shall retain exclusive jurisdiction to determine fundamental issues of
custody, visitation, and support, and the authority to exercise management and control of the
case.
(d) The court shall select a parenting coordinator from a list maintained by the district
court. Prior to the appointment conference, the court must complete and give to the parenting
coordinator a referral form listing contact information for the parties and their attorneys, the
court’s findings in support of the appointment, and any agreement by the parties. (2005-228, s.
1.)

§ 50-92. Authority of parenting coordinator.
(a) The authority of a parenting coordinator shall be specified in the court order
appointing the parenting coordinator and shall be limited to matters that will aid the parties:
(1) Identify disputed issues.
(2) Reduce misunderstandings.
(3) Clarify priorities.
(4) Explore possibilities for compromise.

(5) Develop methods of collaboration in parenting.
(6) Comply with the court’s order of custody, visitation, or guardianship.
(b) Notwithstanding subsection (a) of this section, the court may authorize a parenting
coordinator to decide issues regarding the implementation of the parenting plan that are not
specifically governed by the court order and which the parties are unable to resolve. The parties
must comply with the parenting coordinator’s decision until the court reviews the decision. The
parenting coordinator, any party, or the attorney for any party may request an expedited hearing
to review a parenting coordinator’s decision. Only the judge presiding over the case may
subpoena the parenting coordinator to appear and testify at the hearing.
(c) The parenting coordinator shall not provide any professional services or counseling
to either parent or any of the minor children. The parenting coordinator shall refer financial
issues to the parties’ attorneys. (2005-228, s. 1.)

§ 50-93. Qualifications.
(a) To be eligible to be included on the district court’s list of parenting coordinators, a
person must meet all of the following requirements:
(1) Hold a masters or doctorate degree in psychology, law, social work,
counseling, medicine, or a related subject area.
(2) Have at least five years of related professional post-degree experience.
(3) Hold a current license in the parenting coordinator’s area of practice, if
applicable.
(4) Participate in 24 hours of training in topics related to the developmental
stages of children, the dynamics of high-conflict families, the stages and
effects of divorce, problem solving techniques, mediation, and legal issues.
(b) In order to remain eligible as a parenting coordinator, the person must also attend
parenting coordinator seminars that provide continuing education, group discussion, and peer
review and support. (2005-228, s. 1.)

§ 50-94. Appointment conference.
(a) The parties, their attorneys, and the proposed parenting coordinator must all attend
the appointment conference.
(b) At the time of the appointment conference, the court shall do all of the following:
(1) Explain to the parties the parenting coordinator’s role, authority, and
responsibilities as specified in the appointment order and any agreement
entered into by the parties.
(2) Determine the information each party must provide to the parenting
coordinator.
(3) Determine financial arrangements for the parenting coordinator’s fee to be
paid by each party and authorize the parenting coordinator to charge any
party separately for individual contacts made necessary by that party’s
behavior.
(4) Inform the parties, their attorneys, and the parenting coordinator of the rules
regarding communications among them and with the court.
(5) Enter the appointment order.
(c) The parenting coordinator and any guardians ad litem shall bring to the appointment
conference all necessary releases, contracts, and consents. The parenting coordinator must also
schedule the first sessions with the parties. (2005-228, s. 1.)

§ 50-95. Fees.

(a) The parenting coordinator shall be entitled to reasonable compensation from the
parties for services rendered and to a reasonable retainer. The parenting coordinator may
request a hearing in the event of a fee dispute.
(b) The court may make the appointment of a parenting coordinator contingent upon the
parties’ payment of a specific fee to the parenting coordinator. The parenting coordinator shall
not begin any duties until the fee has been paid. (2005-228, s. 1.)

§ 50-96. Meetings and communications.
Meetings between the parenting coordinator and the parties may be informal and ex parte.
Communications between the parties and the parenting coordinator are not confidential. The
parenting coordinator and the court shall not engage in any ex parte communications.
(2005-228, s. 1.)

§ 50-97. Reports.
(a) The parenting coordinator shall promptly provide written notification to the court,
the parties, and attorneys for the parties if the parenting coordinator makes any of the following
determinations:
(1) The existing custody order is not in the best interests of the child.
(2) The parenting coordinator is not qualified to address or resolve certain issues
in the case.
(b) The court shall schedule a hearing and review the matter no later than two weeks
following receipt of the report. The parenting coordinator shall remain involved in the case
until the hearing.
(c) If the parties agree to any fundamental change in the child custody order, the
parenting coordinator shall send the agreement to the parties’ attorneys for preparation of a
consent order. (2005-228, s. 1.)

§ 50-98. Parenting coordinator records.
(a) The parenting coordinator shall provide the following to the attorneys for the parties
and to the parties:
(1) A written summary of the developments in the case following each meeting
with the parties.
(2) Copies of any other written communications.
(b) The parenting coordinator shall maintain records of each meeting. These records
may only be subpoenaed by order of the judge presiding over the case. The court must review
the records in camera and may release the records to the parties and their attorneys only if the
court determines release of the information contained in the records will assist the parties with
the presentation of their case at trial. (2005-228, s. 1.)

§ 50-99. Modification or termination of parenting coordinator appointment.
(a) For good cause shown, the court may terminate or modify the parenting coordinator
appointment upon motion of either party at the request of the parenting coordinator, upon the
agreement of the parties and the parenting coordinator, or by the court on its own motion. Good
cause includes any of the following:
(1) Lack of reasonable progress over a significant period of time despite the best
efforts of the parties and the parenting coordinator.
(2) A determination that the parties no longer need the assistance of a parenting
coordinator.
(3) Impairment on the part of a party that significantly interferes with the party’s
participation in the process.
(4) The parenting coordinator is unable or unwilling to continue to serve.

(b) If the parties agreed to the appointment of the parenting coordinator under G.S.
50-91(a), the court may terminate or modify the appointment according to that agreement or
according to a subsequent agreement by the parties. (2005-228, s. 1.)

§ 50-100. Parenting coordinator immunity.
A parenting coordinator shall not be liable for damages for acts or omissions of ordinary
negligence arising out of that person’s duties and responsibilities as a parenting coordinator.
This section does not apply to actions arising out of the operation of a motor vehicle.
(2005-228, s. 1.)

 

 

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Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement.   He is a parent coordinator. He can be reached at 919.863.4183.

Winning Your Case at Trial or Mediation

PlanWhether you are litigating or trying to settle issues of child custody, equitable distribution, alimony, or child support, putting your best case on is important.  The issues at stake are about your children and financial security and you do not want to have any regrets.

Below are suggestions to help you do as well as possible whether you are litigating your case or trying to settle it.

  1. Make Sure Your Attorney Knows All the Facts:  Never leave out critical facts because you believe they are embarrassing to tell your attorney.  Remember, the other side may bring these up and you do not want your lawyer to be surprised or unprepared because you did not warn him in advance.   Tell your lawyer everything.
  2. Take Care of Your Responsibilities While the Case is Pending: Courts do not react well to destructive actions aimed at hurting your spouse. Withholding support, allowing the utilities to be cut off, not paying the mortgage… these are all destructive acts that courts do not like.
  3. Control Your Online Presence: Do not post negative, vicious, threatening, or other comments about your spouse, your divorce, or the process.   Do not post anything that you would not be okay with the judge reading.  be very careful in posting photographs of your children online.   In the past I have suggested not to post children’s photos at all, but if you carefully monitor the content and your privacy settings, judges are not inherently against the idea since many people use this as a way to share photos with family.    You should assume that anything you post online may be brought up in court.   The safest approach is simply to stop using social media until your case is settled or a judge makes a decision.
  4. Timely Comply With Court Rules and Discovery Requests:  Wake County has extensive local rules that require documents and information to be turned over.  Also, nearly every case will have discovery requests from both side where documents, photographs, diaries, calendar, and journals are requested.  You are required to comply with the local rules in your jurisdiction and legitimate discovery requests..   Be careful, because if you do not timely provide the documents and information requested you will likely be sanctioned by the court. Sanctions can consist of attorney fee awards, contempt of court, and/or the court preventing you from putting on evidence.
  5. Email, Texts, and Phone Records:  In most cases where there are allegations of wrongdoing there will  be requests for email, text messages and phone records. The attorney may also request to make a duplicate image of your computer hard drive to obtain all of the files and data on it. When faced with this prospect many people attempt to get rid of the contents of their computer. Destruction of potential evidence is a bad idea.
  6. Depositions:  In many cases each party’s deposition will be taken.   A deposition is a proceeding that takes place in one of the attorney’s offices where your sworn testimony is taken.   Depositions are important.  Your deposition may be used at trial to raise questions of your credibility if you testify differently at trial than you did in deposition.   You should prepare carefully for your deposition with your attorney.
  7. Dress appropriately for court and mediations: This means a suit and tie for men and a conservative suit, dress or skirt and blouse for women.
  8. Follow the Rules of Decorum:   Turn your phone off.  Don’t wear a baseball cap.  Do no chew gum. Be respectful to the judge, the clerks of court, opposing counsel, and your spouse. Everything you do in the courtroom is visible to the judge, and judges watch behavior carefully.

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Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement. He can be reached at 919.863.4183.