Recent North Carolina Legislation Affecting Family Law and Divorce – Part 1

This is Part 1 of a recent article that I wrote regarding recent laws passed by the North Carolina General Assembly which affect family law and divorce issues.  Part 2 will be coming soon.

The recent legislative session of the North Carolina General Assembly was notable for many reasons and brought a lot of attention to the State of North Carolina.  While one high profile bill that was passed in the area of family law garnered a good bit of national attention, there were several others that could significantly impact family law practitioners.  The following is a summary of new laws that were enacted during the long session of the 2013 General Assembly that may impact you in your representation of domestic clients.

Uniform Deployed Parents Custody and Visitation Act

One comprehensive piece of legislation was the adoption of the Uniform Deployed Parents Custody and Visitation Act .  This law amends N.C.G.S. §§ 50-13.2 and 50-13.7A, and creates a new Article 3 in Chapter 50A.  This law became effective October 1, 2013.

The first section of the new law amends N.C.G.S. § 50-13.2 by adding a new subsection (f).  This new subsection prohibits a court that is making a custody determination from considering past military deployment or possible future deployment as the only basis in determining what is in the child’s best interest (emphasis added).  The new subsection does allow the court to consider past or possible future deployment that has any significant impact on the best interest of the child.  In practical terms, the result is that the court cannot use past or future deployments as the only basis for a custody decision, but may use it as one of several factors.  Furthermore, if the past or future deployments have a significant impact on the child’s best interest the factor may be weighed more heavily.

The second section of the new law repeals § 50-13.7A.  These were the previous provisions regarding custody and visitation for military members.  These provisions are replaced by the much more comprehensive provisions in section three of the law.

Section 3 of the law creates a new Article 3 in Chapter 50A, titled the Uniform Deployed Parents Custody and Visitation Act.  The Uniform Act is broken down into four parts.  Part 1 of the Act are the “General Provisions” and begins with an outline of 18 various definitions used throughout the Uniform Act.  While most of the definitions are standard and should be reviewed by the family law practitioner, there are a few worth mentioning.  “Caretaking authority” is defined as “the right to live with and care for a child on a day-to-day basis, including physical custody, parenting time, right to access, and visitation.”   “Custodial responsibility” is defined as “a comprehensive term that includes any and all powers and duties relating to caretaking authority and decision-making authority for a child.  The term includes custody, physical custody, legal custody, parenting time, right to access, visitation, and the authority to designate limited contact with a child.”   Another definition to note is that “record” is specifically defined as “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.”

Part 1 of the Act includes a provision for attorney fees “and other appropriate relief” to be assessed if a party acts in bad faith or intentionally fails to comply with the requirements of the Act.   Part 1 also requires that an issuing court have jurisdiction pursuant to the UCCJEA, but provides that deployment does not change the residence of deploying parent.  Furthermore, Part 1 requires a deploying parent to provide notice to the other parent of a pending deployment not later than seven days after the deploying parent receives notice of deployment unless the parent is prevented from providing notice due to “circumstances of service”, and then notice must be provided as soon as reasonably possible.   The notice required under this provision must be provided in a “record”.  The deploying parent also must provide other parent with a plan for fulfilling that parent’s share of custodial responsibility.  If a person to whom custodial responsibility has been assigned during a parent’s deployment moves, then notice must be provided to the deployed parent and any other person with custodial responsibility, and notice must be provided to the court if there is a court proceeding.

Part 2 of the Act allows parents to enter into a temporary agreement granting custodial responsibility during one parent’s deployment.  The agreement must be in writing and signed by both parents and any nonparent who is given custodial responsibility.   The statute outlines a non-exclusive list of items that may be included in an agreement.   If there is an existing court order for custody or child support, the agreement must be filed with the court.

Part 3 of the Act outlines the judicial procedures after a parent receives notice of deployment.  Either parent can seek a judicial order after notice of deployment and the court may only enter a temporary order, unless the deploying parent agrees to a permanent order.   The hearing is to be expedited  and testimony by electronic means is allowed, unless the court finds good cause to require personal appearance.   A prior judicial order which contains provisions for deployment must be enforced unless the circumstances require modification and the court must enforce prior written agreement between parents unless agreement found to be contrary to best interests of child.

The statute allows for the court to grant caretaking authority to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship.   This grant of authority is limited by the language “in accordance with the laws of this State….”  In this author’s opinion, this limitation makes most of the provisions in Section 3 either invalid or extremely limited.  The current North Carolina law in the area of third party custody is limited to situations where parents are alleged and proven to be unfit, neglectful or have acted inconsistent with their parental rights.

If the other parent will not agree to this third party, the court is limited to allowing the third party only the time allowed the deploying parent by a current order or “the amount of time the deploying parent habitually care for the child.”   The statute also allows the court to grant decision-making authority to this third party to an adult family member or person with whom the child has a close and substantial relationship and the court must be specific about the powers being granted.  Any nonparent is made a party to the action until the grant of authority is terminated.  The statute allows an order to outline contact for the child with the nonparent  and outlines certain factors each order must contain, in addition to being only a temporary order.

Part 4 of the new statute contains the termination provisions.  An agreement under the new law terminates upon further agreement by the parents or 60 days after the deploying parent provides notice that he or she has returned from deployment.   If an order was entered by a court, the order terminates by agreement of the parties  or 60 days after the deployed parent provides notice of return.

No Social Security Number for Absolute Divorce

One piece of legislation that was passed was overdue.  With Session Law 2013-93, the General Assembly removed the provisions N.C.G.S. § 50-8 which required that the plaintiff in a divorce proceeding provide his/her social security number and the social security number of the defendant, if known, in a complaint for absolute divorce and a judgment of divorce.   This law was effective when it became law on June 12, 2013.

Entireties Property Presumed to be Marital Property

With Session Law 2013-103 , N.C.G.S. § 50-20 was amended to include the presumption that real property acquired after marriage and before separation as a tenancy by the entireties is marital property, no matter what source of funds was used to acquire the property.  The “marital gift presumption” has been a part of North Carolina equitable distribution law since at least 1985.  McLeod v. McLeod, 74 N.C.App. 144, 327 S.E.2d 910, review denied, 314 N.C. 331, 333 S.E.2d 488 (1985).  This same bill also amended the definition of divisible property to clarify that passive increase and decreases in marital debt and financing charges and interest related to marital debt are divisible  (emphasis added).  This change makes it clear that active increases and decreases are not divisible (emphasis added).