Senate committee substitute makes the following changes to the 2nd edition.
Modifies the proposed changes to GS 48-2-205, providing that a man and a woman or two persons (previously amended the language to provide only for two persons) who adopted a minor child in a foreign country while married to one another must readopt jointly. Makes the same changes to the proposed language regarding adoption decrees when one of the adoptive parents dies.
Bill Summaries: S490 REVISE PARENTING COORDINATOR LAWS/FAMILY LAW.
Summary date: May 2 2019 - View Summary
Summary date: May 1 2019 - View Summary
Senate committee substitute makes the following changes to the 1st edition.
Changes the act's long title. Places the previous provisions into Part I. Adds new Parts II and III as follows.
Amends GS 50-20.1, concerning the equitable distribution of certain marital benefits, retitling the statute Pension, retirement, and deferred compensation benefits (was, Pension and retirement benefits). Modifies and adds to the statute's provisions, now providing as follows.
Provides for the distribution of vested marital pension, retirement, or deferred compensation benefits to be payable as a lump sum from the plan, program, system, or fund for those benefits; as fixed amounts over a period of time from the plan, program, system, or fund for those benefits; as a prorated portion of the benefits made to the designated recipient at the time the participant-spouse, as defined, is eligible to receive benefits, actually begins to receive benefits, or reaches earliest retirement age (previously limited to the time the time the party actually begins to receive benefits and by appropriate domestic relations order); by awarding a larger portion of other assets to the party not receiving the benefits and a smaller share of other assets to the party entitled to receive the benefits; or as a lump sum, over a period of time in fixed amounts, by agreement (not previously an option).
Provides for the distribution of nonvested marital pension, retirement, or deferred compensation benefits to be payable as a lump sum agreement; over a period of time in fixed amounts by agreement; or as a prorated portion of the benefits made to the designated recipient at the time the participant-spouse, as defined, is eligible to receive benefits, actually begins to receive benefits, or reaches earliest retirement age, if permitted by the plan, program, system, or fund (previously limited to the time the time the party actually begins to receive benefits and by appropriate domestic relations order).
Makes conforming changes throughout to refer to the plan, program, system, or fund for the benefits rather than the fund or plan for those benefits. Prohibits a court from requiring the administrator of the plan, program, system, or fund involved to make any payments or distributions to the nonparticipant spouse, except as the terms of the plan, program, system, or fund permit (previously prohibited until the party against whom the award is made actually begins to receive the benefits unless the plan permits an earlier distribution).
Provides that when the amount of the benefit payable by the plan, program, system, or fund to the participant-spouse is determined in whole or part by the length of time of the participant-spouse's employment, the marital portion is determined using the proportion of time the marriage existed simultaneously with the total time of the employment which earned the benefit subject to equitable distribution to the total amount of time of employment which earned the benefit subject to equitable distribution (clarified from existing language). Maintains existing language concerning the determination calculation. Requires the award to include costs of living adjustments and similar enhancements to the participant's benefit. Provides that if a court makes the award payable as a prorated portion of the benefits made to the designated recipient, as specified in subdivisions (a)(3) or (b)(3) as amended, and divides the marital portion of the benefit equally, the court is not required to determine the total value of marital benefits before classifying and distributing the benefits; however, neither party is prohibited from presenting evidence of the total value of any marital benefits or any benefits that are separate property of either spouse. Provides for a similar distribution where a pension, retirement, or deferred compensation plan, program, system, or fund, or applicable statute, limits or restricts the amount of the benefit subject to equitable distribution.
Requires the court to determine the award when the amount of the benefit payable by the plan, program, system, or fund is based on contributions and held in one or more accounts with readily determinable balances, by determining the amount in the account balance that is due to contributions made or earned during the marriage and before separation, together with the income, gains, losses, appreciation, and depreciation accrued on those contributions. Allows the court to determine the award based on the proportion of the time the marriage existed simultaneously with the employment which earned the benefit subject to equitable distribution to the total amount of time of employment, as in subsection (d) as amended, if sufficient evidence is not presented to the court to make the determination required. Either way, requires the award to be based on the vested and nonvested accrued benefit as of the date of separation, together with the income, gains, losses, appreciation, and depreciation accrued after the date of separation on the date-of-separation benefits. Prohibits the award from including contributions that can accrue or be made after the date of separation, or any income, gains, losses, appreciation, and depreciation accrued on those contributions.
Maintains the award cap of 50% of the benefits the person against whom the award is made is entitled to receive as vested and nonvested pension, retirement, or deferred compensation benefits, except as previously specified. Maintains the provisions providing for the unpaid balance of the award to pass as previously specified in the event the person receiving the award dies.
Provides further specifications for when an award is made payable as a prorated portion of the benefits made to the designated recipient pursuant to subdivisions (a)(3) and (b)(3) as amended, regarding awards and allocations dependent on whether the pension, retirement, or deferred compensation plan, program, system, or fund permits the use of a "separate interest" approach in the domestic relations order.
Adds that whenever a pension, retirement, or deferred compensation plan, program, system, or fund does not automatically provide pre-retirement survivor annuity protection for the nonparticipant spouse, the court is required to order the protection for the nonparticipant spouse if permitted by the plan, program, system, or fund. Authorizes the court to equally allocate any fees assessed by the plan, program, system, or fund in order to process any domestic relations order or qualified domestic relations order.
Maintains the provisions concerning a court's avenues to require distribution of the award, now including by domestic relations order.
Clarifies that the statute and GS 50-21 apply to all vested and nonvested pension, retirement, and deferred compensation plans; programs; systems; or funds, including but not limited to the specified programs and plans provided, including uniformed services retirement programs, church plans, and charitable organization plans (previously specified certain plans but did not qualify that covered plans are not limited to those specified).
Provides for a court to enter a subsequent order to clarify or correct a prior order upon a plan, program, system, or fund deeming an order providing for distribution of its benefits unacceptable.
Allows a claim to be filed, as specified, for an order effectuating the distribution of benefits provided in a valid written agreement, as defined in GS 50-20(d), whether or not a claim for equitable distribution has been filed or adjudicated. Authorizes a court to enter an order effectuating the distribution provided for in the valid written agreement.
Applies to distributions made on or after October 1, 2019.
Amends GS 48-2-100, which prohibits state courts from exercising jurisdiction under the Chapter if, at the time an adoption petition is filed, a court of any other state is exercising jurisdiction substantially in conformity with the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA; Article 2, GS Chapter 50A), unless the other state court dismisses its proceeding or releases its exclusive, continuing jurisdiction prior to a grant of the adoption decree. Expands the jurisdiction of state courts under the Chapter to matters in which another state is exercising jurisdiction in substantial conformity with the UCCJEA and places custody of the adoptee in an agency, the petitioner, or another custodian expressly in support of an adoption plan that does not identify a specific prospective adoptive parent other than the petitioner. Makes clarifying changes.
Amends GS 48-2-205, concerning the recognition of adoption decrees from other jurisdictions. Provides that two persons (was, a man and a woman) who adopted a minor child in a foreign country while married to one another must readopt jointly, regardless of whether they have been since divorced. Adds that if two persons have adopted a minor child in a foreign country while married to one another and one of them has died, the survivor can petition for readoption and the court must issue a decree of adoption in the names of both the persons who adopted the minor child in a foreign country. Makes conforming changes to GS 48-2-301(c), concerning who can file adoption petitions.
Makes clarifying and organizational changes to GS 48-2-606, concerning adoption decrees.
Amends GS 48-3-303, concerning information which must be reported in preplacement assessments, to allow for the redaction from the assessment provided to a placing parent or guardian detailed information reflecting the prospective adoptive parent's income, expenditures, assets, and liabilities (was, income and financial account balances).
Amends GS 48-3-605 to now require an individual before whom a consent is signed and acknowledged to certify in writing that to the best of the individual's knowledge or belief, the parent, guardian, or minor to be adopted executing the consent has been advised of the right to seek the advice of legal counsel before executing the consent. Makes identical changes to the provisions regarding the execution of relinquishment set out in GS 48-3-702. Amends GS 48-3-606 and GS 48-3-703 to refer to the right to seek the advice of legal counsel, rather than to employ independent legal counsel, concerning requirements of the consent or the relinquishment executions.
Amends GS 48-9-102 concerning confidentiality and sealing of adoption records. Clarifies that the Department of Social Services, Division of Social Service (DSS), must permanently index and file the records, without review. Now requires DSS to transmit a report of each adoption and name change to the State Registrar or entity of another state responsible for issuing birth certificates within 40 days after receiving the report from the court (previously, no timeline specified).
Amends GS 48-9-109 to add that nothing in Article 9, Confidentiality of Records and Disclosure of Information, prevents an employee of a court, agency, or any other person from giving a file-stamped copy of a document to a person, or to the legal representative of a person, who has filed the document in an adoption proceeding.
Amends GS 1-597, regarding regulations for newspaper publication of legal notices and advertisements. Provides that whenever a notice or any other paper, document, or legal advertisement of any kind or description is required to be published in a jurisdiction outside of the state where legal notices are customarily published in specialized legal publications, any form of publication that meets the requirements for legal notices under the law of the locality where it is published is deemed sufficient under GS 1-597.
Amends GS 7B-200, regarding jurisdiction over cases involving juveniles alleged to be abused, neglected, or dependent to explicitly include in a court's exclusive original jurisdiction proceedings for the return of a juvenile to the state and proceedings to review a refusal or failure of the administrator of the Interstate Compact on the Placement of Children (the Compact; set forth in Article 38, GS Chapter 7B) in the state to forward a request for approval of a placement to the receiving state or to find that placement does not appear to be contrary to the interests of the child. Enacts GS 7B-3807 to provide for such judicial proceedings under the Compact. Provides for initiation of the review by motion in a pending action, as specified, or by petition. Requires the administrator to communicate an intention to refuse to forward a request for approval of a placement to the receiving state or to find that a placement does not appear to be contrary to the interests of the child, or for the matter to have been before the administrator for more than five business days, before a motion or petition is to be filed. Requires notice of the motion or petition for review to be given to the administrator by any reasonable means. Provides for venue in instances in which there is not a pending action as to the juvenile, as specified, in a court in the state. Deems this review to be an expedited proceeding, and requires the court to conduct a hearing within 10 days from the date of filing the petition or during the next term of court, as appropriate, and authorizes the court to order the administrator to take any action the administrator is permitted to take.
Amends GS 150B-1 to exempt from the contested case provisions the Department of Health and Human Services in administering the Compact under Article 38, GS Chapter 7B.
Effective October 1, 2019.
Summary date: Apr 2 2019 - View Summary
Identical to H 470, filed 3/26/19.
Makes the following changes to Article 5, Parenting Coordinator, GS Chapter 50.
Adds party to the defined terms set out in GS 50-90, defining the term to mean any person granted legal or physical custodial rights to a child in a child custody action.
Amends GS 50-91, regarding the appointment of parenting coordinators. Now authorizes the court to appoint or reappoint a parenting coordinator at any time in a child custody action involving minor children brought under Article 1, on or after entry of a custody order other than an ex parte order, or upon entry of a contempt order involving a custody issue pursuant to: (1) all parties' consent to the appointment and the scope of authority; (2) upon motion of a party requesting the appointment; or (3) upon the court's own motion (previously, did not provide for reappointment; specified during the proceedings of the action; did not provide for the court to make appointment upon motion of a party requesting appointment or upon its own motion). Further provides for the court to make specified findings that the action is a high-conflict case, the appointment 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 coordinator, in the event the parties have not consented to the appointment (previously, allowed the court to make the appointment without 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 those specified findings were made). Adds that the court does not have to find a substantial change of circumstance has occurred to appoint a parenting coordinator. Requires the appointing order to specify the terms of the appointment. Removes the requirements for the order to specifically incorporate any agreement regarding the role of the coordinator made by the parties. Also eliminates the requirement for the court to give a copy of the order to the parties prior to the appointment conference. Provides for selection of the parenting coordinator from a list maintained by the district court (previously, selection specifically by the court). Clarifies that prior to appointment, the court, the parties' attorneys, or the parties must contact the coordinator to determine if the coordinator is willing and able to accept the appointment.
Amends GS 50-92, regarding the authority of the parenting coordinator. Requires the authority to be limited to matters that will aid the parties in complying with the custody order, resolving disputes regarding issues that were not specifically addressed in the custody order, or ambiguous or conflicting terms in the custody order (previously, identify disputed issues, reduce misunderstandings, clarify priorities, explore possibilities for compromise, develop methods of collaboration in parenting, and compliance with the court's order). Now provides 20 areas which the scope of authority can, but is not limited to, including transition time, pick up, or delivery; sharing vacations and holidays; diet, clothing, extracurricular activities, and discipline. Authorizes the coordinator to decide any issue within the scope of authority, and deems the decision enforceable as an order of the court. Requires decisions to be in writing and provided to the parties and their attorneys. Deems the decision binding so long as the custody order is in effect, even after the expiration of the coordinator's term unless the coordinator or subsequent coordinator modifies the decision or the courts review and modifies the decision. Allows any party or their attorney to file a motion for the court to review a coordinator's decision. Requires the parties to comply with the decision unless the court, after a review hearing, determines the decision is not in the child's best interest or the decision exceeded the scope of authority (previously, allowed the court to authorize the coordinator to make decisions regarding implementation of the parenting plan not specifically governed by the order, binding on the parties until reviewed by the court at a hearing at the request of the coordinator or either party; did not provide specific findings the court must make in its review of the decision). Provides that the moving party or their attorney must cause a subpoena to be issued for the coordinator's attendance at the review hearing (previously, only the judge presiding over the case can subpoena the coordinator to attend and testify at the review hearing). Requires the court to determine how the coordinator's fees are to be apportioned between the parties at the conclusion of the review hearing. Further authorizes the court to review and modify the coordinator's decision after the expiration of a parenting coordinator's term (not previously provided for). Requires the coordinator to provide any financial issues related to the coordinator's decisions to the parties or their attorneys (previously, did not specify that financial issues must relate to the coordinator's decisions and limited reference to the parties' attorneys). Make further clarifying changes.
Amends GS 50-93, regarding qualifications for inclusion of the district court's list of parenting coordinators, now requiring the person to hold a master's or doctorate degree in psychology, law, social work, or counseling (removing the qualification to hold a master's degree or doctorate degree in medicine or a related area) and current North Carolina license in the coordinator's areas of practice (previously, did not specify the license must be a North Carolina license; removes the qualifying phrase of applicability).
Amends GS 50-94, concerning the parenting coordinator appointment conference, to no longer require a conference if the coordinator's term is later extended; a subsequent coordinator is appointed in the same matter; or the parties, their attorneys, and the proposed coordinator consent to a waiver of the conference by signing the proposed appointment order. Prohibits the court from entering an appointment order or conducting a conference unless a custody order has already been entered or is simultaneously entered. Removes the requirement for the court to determine the information each party must provide to the parenting coordinator at the time of the appointment conference. Makes clarifying changes. Eliminates the provisions requiring the coordinator and any guardians ad litem to bring all necessary releases, contracts, and consents to the conference, and requiring the coordinator to schedule the first session with the parties.
Amends GS 50-95, concerning fees of the parenting coordinator, to now require the coordinator to file a fee report and request a hearing in the event of a dispute of fee or retainer payment (previously, the coordinator was not required to file a fee report, and disputes on retainers were not included). Now additionally provides for a party disputing the fees or the allocation of the fees to file a motion with the court requesting a review of the fees. Adds that the district court retains jurisdiction to resolve disputes regarding the coordinator's fees after the conclusion of the coordinator's term so long as the coordinator's fee report was filed in a timely manner. Removes the provision authorizing the court to condition the appointment upon the parties' payment of a specified fee to the coordinator, and prohibiting the coordinator from beginning any duties until the fee has been paid.
Expands GS 50-96, now allowing meeting and communications between the parties, their attorneys, or any other person with information that assists the coordinator in the coordinator's duties, to be informal and ex parte. Now requires the parties to timely execute any releases necessary to facilitate communication with any person having information that assists the coordinator in the coordinator's duties, upon request of the coordinator. Authorizes the coordinator, in the coordinator's discretion, to meet or communicate with the minor children.
Rewrites GS 50-97, regarding reports of the parenting coordinator. Now permits the coordinator to file a report with the court regarding any of the five specified issues, including the parenting coordinator's belief that the existing custody order is not in the best interest of the child, a party's noncompliance with a decision of the coordinator or the terms of the custody order, or the parenting coordinator's request that the appointment be modified or terminated. Provides for a hearing in the event of a party's noncompliance with the coordinator's decision, the terms of the custody order, or nonpayment of the coordinator fees (previously, provided for a hearing no later than two weeks following receipt of the required report if the coordinator made noncompliance determinations). Specifies that the provisions do not prevent a party from filing its own motion regarding noncompliance with the coordinator's decision or the terms of the custody order. Now requires an expedited hearing to be granted and occur within four weeks of the filing of the report unless the coordinator requests longer or the court has already issued an order during a party to show cause why the party should not be held in contempt. Authorizes the court to issue temporary custody orders as required for a child's best interest after a hearing on the report.
Rewrites GS 50-98, regarding parenting coordinator records, to permit the coordinator to release any records held by the coordinator to the parties or their attorneys, at the discretion of the coordinator (previously, required the coordinator to provide written summaries of development and copies of other written communications to the parties and their attorneys; also required coordinators to maintain records of each meeting, which could only be subpoenaed by the presiding judge, and were reviewable in camera and released only if the court determined the records would assist the parties with the presentation of their case at trial). Now permits any party to apply to the presiding judge for the issuance of a subpoena to compel production of the coordinator's records. Requires any party submitting the application to provide reasonable notice to the coordinator and the parties so that any objection to the release of information or the manner of release can be considered prior to the issuance of the subpoena.
Amends GS 50-99, authorizing the court to terminate or modify the parenting coordinator's appointment upon motion of any party, upon the agreement of the parties, or by the court on its own motion, for good cause shown (previously, included upon motion of either party at the request of the coordinator). Now allows for the court to modify or terminate the coordinator's appointment upon request of the coordinator for good cause shown as set forth in GS 50-97(a)(5), as enacted. Makes organizational changes to the provisions describing good cause, and now includes in the term: (1) lack of reasonable progress (previously qualified with over a significant period of time despite the best efforts of the parties and the coordinator) and (2) the inability or unwillingness of the coordinator to continue to serve (was, the coordinator is unable or unwilling to serve). Makes clarifying changes.
Effective October 1, 2019.