Child Support | Child Support Statutes |
|
|
|
Child Support Statutes
N.C.G.S. § 50-13.1.
Action or proceeding for custody of minor child
(a) Any parent, relative, or other person, agency, organization or
institution claiming the right to custody of a minor child may institute an
action or proceeding for the custody of such child, as hereinafter provided.
Any person whose actions resulted in a conviction under G.S. 14-27.2 or G.S. 14-27.3 and the conception of the minor child may not claim the right to
custody of that minor child. Unless a contrary intent is clear, the word
“custody” shall be deemed to include custody or visitation or both.
(a1) Notwithstanding any other provision of law, any person
instituting an action or proceeding for custody ex parte who has been convicted
of a sexually violent offense as defined in G.S. 14-208.6(5) shall
disclose the conviction in the pleadings.
(b) Whenever it appears to the court, from the pleadings or
otherwise, that an action involves a contested issue as to the custody or
visitation of a minor child, the matter, where there is a program established
pursuant to G.S. 7A-494, shall be set for
mediation of the unresolved issues as to custody and visitation before or
concurrent with the setting of the matter for hearing unless the court waives
mediation pursuant to subsection (c). Issues that arise in motions for contempt
or for modifications as well as in other pleadings shall be set for mediation
unless mediation is waived by the court. Alimony, child support, and
other economic issues may not be referred for mediation pursuant to this
section. The purposes of mediation under this section include the pursuit of
the following goals:
(1) To reduce any acrimony that exists between the parties to a
dispute involving custody or visitation of a minor child;
(2) The development of custody and visitation agreements that are
in the child's best interest;
(3) To provide the parties with informed choices and, where
possible, to give the parties the responsibility for making decisions about
child custody and visitation;
(4) To provide a structured, confidential, nonadversarial setting
that will facilitate the cooperative resolution of custody and visitation
disputes and minimize the stress and anxiety to which the parties, and
especially the child, are subjected; and
(5) To reduce the relitigation of custody and visitation disputes.
(c) For good cause, on the motion of either party or on the
court's own motion, the court may waive the mandatory setting under Article 39A
of Chapter 7A of the General Statutes of a contested custody or visitation
matter for mediation. Good cause may include, but is not limited to, the following:
a showing of undue hardship to a party; an agreement between the parties for
voluntary mediation, subject to court approval; allegations of abuse or neglect
of the minor child; allegations of alcoholism, drug abuse, or domestic violence
between the parents in common; or allegations of severe psychological,
psychiatric, or emotional problems. A showing by either party that the party
resides more than fifty miles from the court shall be considered good cause.
(d) Either party may move to have the mediation proceedings
dismissed and the action heard in court due to the mediator's bias, undue
familiarity with a party, or other prejudicial ground.
(e) Mediation proceeding shall be held in private and shall be confidential.
Except as provided in this Article, all verbal or written communications from
either or both parties to the mediator or between the parties in the presence
of the mediator made in a proceeding pursuant to this section are absolutely
privileged and inadmissible in court. The mediator may assess the needs and
interests of the child, and may interview the child or others who are not
parties to the proceedings when he or she thinks appropriate.
(f) Neither the mediator nor any party or other person involved in
mediation sessions under this section shall be competent to testify to
communications made during or in furtherance of such mediation sessions;
provided, there is no privilege as to communications made in furtherance of a
crime or fraud. Nothing in this subsection shall be construed as permitting an
individual to obtain immunity from prosecution for criminal conduct or as
excusing an individual from the reporting requirements of Article 3 of Chapter
7B of the General Statutes or G.S. 108A-102.
(g)
Any agreement reached by the parties as a result of the mediation shall be
reduced to writing, signed by each party, and submitted to the court as soon as
practicable. Unless the court finds good reason not to, it shall incorporate
the agreement in a court order and it shall become enforceable as a court
order. If some or all of the issues as to custody or visitation are not
resolved by mediation, the mediator shall report that fact to the court.
(h) If
an agreement that results from mediation and is incorporated into a court order
is referred to as a “parenting agreement” or called by some similar name, it
shall nevertheless be deemed to be a custody order or child custody
determination for purposes of Chapter 50A of the General Statutes, G.S. 14-320.1, G.S. 110-139.1, or other places where those
terms appear.
(i) If
the child whose custody is the subject of an action under this Chapter also is
the subject of a juvenile abuse, neglect, or dependency proceeding pursuant to
Subchapter 1 of Chapter 7B of the General Statutes, then the custody action
under this Chapter is stayed as provided in G.S. 7B-200.
§ 50-13.4. Action
for support of minor child
(a)
Any parent, or any person, agency, organization or institution having custody
of a minor child, or bringing an action or proceeding for the custody of such child,
or a minor child by his guardian may institute an action for the support of
such child as hereinafter provided.
(b) In
the absence of pleading and proof that the circumstances otherwise warrant, the
father and mother shall be primarily liable for the support of a minor child.
In the absence of pleading and proof that the circumstances otherwise warrant,
parents of a minor, unemancipated child who is the custodial or noncustodial
parent of a child shall share this primary liability for their grandchild's
support with the minor parent, the court determining the proper share, until
the minor parent reaches the age of 18 or becomes emancipated. If both the
parents of the child requiring support were unemancipated minors at the time of
the child's conception, the parents of both minor parents share primary
liability for their grandchild's support until both minor parents reach the age
of 18 or become emancipated. If only one parent of the child requiring support
was an unemancipated minor at the time of the child's conception, the parents
of both parents are liable for any arrearages in child support owed by the
adult or emancipated parent until the other parent reaches the age of 18 or
becomes emancipated. In the absence of pleading and proof that the circumstances
otherwise warrant, any other person, agency, organization or institution
standing in loco parentis shall be secondarily liable for such support. Such
other circumstances may include, but shall not be limited to, the relative
ability of all the above-mentioned parties to provide support or the inability
of one or more of them to provide support, and the needs and estate of the
child. The judge may enter an order requiring any one or more of the
above-mentioned parties to provide for the support of the child as may be
appropriate in the particular case, and if appropriate the court may authorize
the application of any separate estate of the child to his support. However,
the judge may not order support to be paid by a person who is not the child's parent
or an agency, organization or institution standing in loco parentis absent
evidence and a finding that such person, agency, organization or institution
has voluntarily assumed the obligation of support in writing. The preceding
sentence shall not be construed to prevent any court from ordering the support
of a child by an agency of the State or county which agency may be responsible
under law for such support.
The
judge may order responsible parents in a IV-D establishment case to perform a
job search, if the responsible parent is not incapacitated. This includes IV-D
cases in which the responsible parent is a noncustodial mother or a
noncustodial father whose affidavit of parentage has been filed with the court
or when paternity is not at issue for the child. The court may further order
the responsible parent to participate in work activities, as defined in 42 U.S.C. § 607, as the court deems appropriate.
(c)
Payments ordered for the support of a minor child shall be in such amount as to
meet the reasonable needs of the child for health, education, and maintenance,
having due regard to the estates, earnings, conditions, accustomed standard of living
of the child and the parties, the child care and homemaker contributions of
each party, and other facts of the particular case. Payments ordered for the
support of a minor child shall be on a monthly basis, due and payable on the
first day of each month. The requirement that orders be established on a
monthly basis does not affect the availability of garnishment of disposable
earnings based on an obligor's pay period.
The
court shall determine the amount of child support payments by applying the presumptive
guidelines established pursuant to subsection (c1) of this section. However,
upon request of any party, the Court shall hear evidence, and from the
evidence, find the facts relating to the reasonable needs of the child for
support and the relative ability of each parent to provide support. If, after
considering the evidence, the Court finds by the greater weight of the evidence
that the application of the guidelines would not meet or would exceed the
reasonable needs of the child considering the relative ability of each parent
to provide support or would be otherwise unjust or inappropriate the Court may
vary from the guidelines. If the court orders an amount other than the amount
determined by application of the presumptive guidelines, the court shall make
findings of fact as to the criteria that justify varying from the guidelines
and the basis for the amount ordered.
Payments
ordered for the support of a child shall terminate when the child reaches the
age of 18 except:
(1) If
the child is otherwise emancipated, payments shall terminate at that time;
(2) If
the child is still in primary or secondary school when the child reaches age
18, support payments shall continue until the child graduates, otherwise ceases
to attend school on a regular basis, fails to make satisfactory academic
progress towards graduation, or reaches age 20, whichever comes first, unless
the court in its discretion orders that payments cease at age 18 or prior to
high school graduation.
In the
case of graduation, or attaining age 20, payments shall terminate without order
by the court, subject to the right of the party receiving support to show, upon
motion and with notice to the opposing party, that the child has not graduated
or attained the age of 20.
If an
arrearage for child support or fees due exists at the time that a child support
obligation terminates, payments shall continue in the same total amount that
was due under the terms of the previous court order or income withholding in
effect at the time of the support obligation. The total amount of these
payments is to be applied to the arrearage until all arrearages and fees are
satisfied or until further order of the court.
(c1)
Effective July 1, 1990, the Conference of Chief District Judges shall prescribe
uniform statewide presumptive guidelines for the computation of child support
obligations of each parent as provided in Chapter 50 or elsewhere in the
General Statutes and shall develop criteria for determining when, in a
particular case, application of the guidelines would be unjust or
inappropriate. Prior to May 1, 1990 these guidelines and criteria shall be
reported to the General Assembly by the Administrative Office of the Courts by
delivering copies to the President Pro Tempore of the Senate and the Speaker of
the House of Representatives. The purpose of the guidelines and criteria shall
be to ensure that payments ordered for the support of a minor child are in such
amount as to meet the reasonable needs of the child for health, education, and
maintenance, having due regard to the estates, earnings, conditions, accustomed
standard of living of the child and the parties, the child care and homemaker
contributions of each party, and other facts of the particular case. The
guidelines shall include a procedure for setting child support, if any, in a
joint or shared custody arrangement which shall reflect the other statutory
requirements herein.
Periodically,
but at least once every four years, the Conference of Chief District Judges
shall review the guidelines to determine whether their application results in
appropriate child support award amounts. The Conference may modify the
guidelines accordingly. The Conference shall give the Department of Health and
Human Services, the Administrative Office of the Courts, and the general public
an opportunity to provide the Conference with information relevant to the
development and review of the guidelines. Any modifications of the guidelines
or criteria shall be reported to the General Assembly by the Administrative
Office of the Courts before they become effective by delivering copies to the
President Pro Tempore of the Senate and the Speaker of the House of
Representatives. The guidelines, when adopted or modified, shall be provided to
the Department of Health and Human Services and the Administrative Office of
the Courts, which shall disseminate them to the public through local IV-D
offices, clerks of court, and the media.
Until
July 1, 1990, the advisory guidelines adopted by the Conference of Chief
District Judges pursuant to this subsection as formerly written shall operate
as presumptive guidelines and the factors adopted by the Conference of Chief
District Judges pursuant to this subsection as formerly written shall
constitute criteria for varying from the amount of support determined by the
guidelines.
(d) In
non-IV-D cases, payments for the support of a minor child shall be ordered to
be paid to the person having custody of the child or any other proper person,
agency, organization or institution, or to the State Child Support Collection
and Disbursement Unit, for the benefit of the child. In IV-D cases, payments
for the support of a minor child shall be ordered to be paid to the State Child
Support Collection and Disbursement Unit for the benefit of the child.
(d1)
For child support orders initially entered on or after January 1, 1994, the
immediate income withholding provisions of G.S. 110-136.5(c1) shall apply.
(e)
Payment for the support of a minor child shall be paid by lump sum payment,
periodic payments, or by transfer of title or possession of personal property
of any interest therein, or a security interest in or possession of real
property, as the court may order. The court may order the transfer of title to
real property solely owned by the obligor in payment of arrearages of child
support so long as the net value of the interest in the property being
transferred does not exceed the amount of the arrearage being satisfied. In
every case in which payment for the support of a minor child is ordered and
alimony or postseparation support is also ordered, the order shall separately
state and identify each allowance.
(e1)
In IV-D cases, the order for child support shall provide that the clerk shall
transfer the case to another jurisdiction in this State if the IV-D agency
requests the transfer on the basis that the obligor, the custodian of the
child, and the child do not reside in the jurisdiction in which the order was
issued. The IV-D agency shall provide notice of the transfer to the obligor by
delivery of written notice in accordance with the notice requirements of
Chapter 1A-1, Rule 5(b) of the Rules of Civil Procedure. The
clerk shall transfer the case to the jurisdiction requested by the IV-D agency,
which shall be a jurisdiction in which the obligor, the custodian of the child,
or the child resides. Nothing in this subsection shall be construed to prevent
a party from contesting the transfer.
(f)
Remedies for enforcement of support of minor children shall be available as
herein provided.
(1)
The court may require the person ordered to make payments for the support of a
minor child to secure the same by means of a bond, mortgage or deed of trust,
or any other means ordinarily used to secure an obligation to pay money or
transfer property, or by requiring the execution of an assignment of wages,
salary or other income due or to become due.
(2) If
the court requires the transfer of real or personal property or an interest
therein as provided in subsection (e) as a part of an order for payment of
support for a minor child, or for the securing thereof, the court may also
enter an order which shall transfer title as provided in G.S. 1A-1, Rule 70 and G.S. 1-228.
(3)
The remedy of arrest and bail, as provided in Article 34 of Chapter 1 of the
General Statutes, shall be available in actions for child-support payments as
in other cases.
(4)
The remedies of attachment and garnishment, as provided in Article 35 of
Chapter 1 of the General Statutes, shall be available in an action for
child-support payments as in other cases, and for such purposes the child or
person bringing an action for child support shall be deemed a creditor of the
defendant. Additionally, in accordance with the provisions of G.S. 110-136, a continuing wage garnishment
proceeding for wages due or to become due may be instituted by motion in the
original child support proceeding or by independent action through the filing
of a petition.
(5)
The remedy of injunction, as provided in Article 37 of Chapter 1 of the General
Statutes and G.S. 1A-1, Rule 65, shall be available in actions
for child support as in other cases.
(6)
Receivers, as provided in Article 38 of Chapter 1 of the General Statutes, may
be appointed in action for child support as in other cases.
(7) A
minor child or other person for whose benefit an order for the payment of child
support has been entered shall be a creditor within the meaning of Article 3A
of Chapter 39 of the General Statutes pertaining to fraudulent conveyances.
(8)
Except as provided in Article 15 of Chapter 44 of the General Statutes, a
judgment for child support shall not be a lien against real property unless the
judgment expressly so provides, sets out the amount of the lien in a sum
certain, and adequately describes the real property affected; but past due
periodic payments may by motion in the cause or by a separate action be reduced
to judgment which shall be a lien as other judgments and may include provisions
for periodic payments.
(9) An
order for the periodic payments of child support or a child support judgment
that provides for periodic payments is enforceable by proceedings for civil
contempt, and disobedience may be punished by proceedings for criminal
contempt, as provided in Chapter 5A of the General Statutes.
Notwithstanding the provisions
of G.S. 1-294, an order for the payment of child
support which has been appealed to the appellate division is enforceable in the
trial court by proceedings for civil contempt during the pendency of the
appeal. Upon motion of an aggrieved party, the court of the appellate division
in which the appeal is pending may stay any order for civil contempt entered
for child support until the appeal is decided, if justice requires.
(10)
The remedies provided by Chapter 1 of the General Statutes, Article 28,
Execution; Article 29B, Execution Sales; and Article 31, Supplemental
Proceedings, shall be available for the enforcement of judgments for child
support as in other cases, but amounts so payable shall not constitute a debt
as to which property is exempt from execution as provided in Article 16 of
Chapter 1C of the General Statutes.
(11)
The specific enumeration of remedies in this section shall not constitute a bar
to remedies otherwise available.
(g) An
individual who brings an action or motion in the cause for the support of a
minor child, and the individual who defends the action, shall provide to the
clerk of the court in which the action is brought or the order is issued, the
individual's social security number.
(h)
Child support orders initially entered or modified on and after October 1,
1998, shall contain the name of each of the parties, the date of birth of each
party, and the court docket number. The Administrative Office of the Courts
shall transmit to the Department of Health and Human Services, Child Support
Enforcement Program, on a timely basis, the information required to be included
on orders under this subsection and the social security number of each party as
required under subsection (g) of this section.
§ 50-13.5. Procedure in actions
for custody or support of minor children
(a)
Procedure.--The procedure in actions for custody and support of minor children
shall be as in civil actions, except as provided in this section and in G.S. 50-19. In this G.S. 50-13.5 the words
“custody and support” shall be deemed to include custody or support, or both.
(b)
Type of Action.--An action brought under the provisions of this section may be
maintained as follows:
(1) As
a civil action.
(2)
Repealed by Laws 1979, c. 110, § 12.
(3)
Joined with an action for annulment, or an action for divorce, either absolute
or from bed and board, or an action for alimony without divorce.
(4) As
a cross action in an action for annulment, or an action for divorce, either
absolute or from bed and board, or an action for alimony without divorce.
(5) By
motion in the cause in an action for annulment, or an action for divorce,
either absolute or from bed and board, or an action for alimony without
divorce.
(6)
Upon the court's own motion in an action for annulment, or an action for
divorce, either absolute or from bed and board, or an action for alimony
without divorce.
(7) In
any of the foregoing the judge may issue an order requiring that the body of
the minor child be brought before him.
(c)
Jurisdiction in Actions or Proceedings for Child Support and Child Custody.--
(1)
The jurisdiction of the courts of this State to enter orders providing for the
support of a minor child shall be as in actions or proceedings for the payment
of money or the transfer of property.
(2)
The courts of this State shall have jurisdiction to enter orders providing for
the custody of a minor child under the provisions of G.S. 50A-201, 50A-202, and 50A-204.
(3) to
(6) Repealed by Laws 1979, c. 110, § 12.
(d)
Service of Process; Notice; Interlocutory Orders.--
(1)
Service of process in civil actions for the custody of minor children shall be
as in other civil actions. Motions for support of a minor child in a pending
action may be made on 10 days notice to the other parties and compliance with
G.S. 50-13.5(e). Motions for custody of a minor child in a pending action may
be made on 10 days notice to the other parties and after compliance with G.S. 50A-205.
(2) If
the circumstances of the case render it appropriate, upon gaining jurisdiction
of the minor child the court may enter orders for the temporary custody and
support of the child, pending the service of process or notice as herein
provided.
(3) A
temporary order for custody which changes the living arrangements of a child or
changes custody shall not be entered ex parte and prior to service of process
or notice, unless the court finds that the child is exposed to a substantial
risk of bodily injury or sexual abuse or that there is a substantial risk that
the child may be abducted or removed from the State of North Carolina for the
purpose of evading the jurisdiction of North Carolina courts.
(e)
Notice to Additional Persons in Support Actions and Proceedings;
Intervention.--
(1)
The parents of the minor child whose addresses are reasonably ascertainable;
any person, agency, organization or institution having actual care, control, or
custody of a minor child; and any person, agency, organization or institution
required by court order to provide for the support of a minor child, either in
whole or in part, not named as parties and served with process in an action or
proceeding for the support of such child, shall be given notice by the party
raising the issue of support.
(2)
The notice herein required shall be in the manner provided by the Rules of
Civil Procedure for the service of notices in actions. Such notice shall advise
the person to be notified of the name of the child, the names of the parties to
the action or proceeding, the court in which the action or proceeding was
instituted, and the date thereof.
(3) In
the discretion of the court, failure of such service of notice shall not affect
the validity of any order or judgment entered in such action or proceeding.
(4)
Any person required to be given notice as herein provided may intervene in an
action or proceeding for support of a minor child by filing in apt time notice
of appearance or other appropriate pleadings.
(f)
Venue.--An action or proceeding in the courts of this State for custody and
support of a minor child may be maintained in the county where the child
resides or is physically present or in a county where a parent resides, except
as hereinafter provided. If an action for annulment, for divorce, either
absolute or from bed and board, or for alimony without divorce has been
previously instituted in this State, until there has been a final judgment in
such case, any action or proceeding for custody and support of the minor
children of the marriage shall be joined with such action or be by motion in
the cause in such action. If an action or proceeding for the custody and
support of a minor child has been instituted and an action for annulment or for
divorce, either absolute or from bed and board, or for alimony without divorce
is subsequently instituted in the same or another county, the court having
jurisdiction of the prior action or proceeding may, in its discretion direct
that the action or proceeding for custody and support of a minor child be
consolidated with such subsequent action, and in the event consolidation is
ordered, shall determine in which court such consolidated action or proceeding
shall be heard.
(g) Custody
and Support Irrespective of Parents' Rights Inter Partes.--Orders for custody
and support of minor children may be entered when the matter is before the
court as provided by this section, irrespective of the rights of the wife and
the husband as between themselves in an action for annulment or an action for
divorce, either absolute or from bed and board, or an action for alimony
without divorce.
(h)
Court Having Jurisdiction.--When a district court having jurisdiction of the
matter shall have been established, actions or proceedings for custody and
support of minor children shall be heard without a jury by the judge of such
district court, and may be heard at any time.
(i)
District Court; Denial of Parental Visitation Right; Written Finding of Fact.--In
any case in which an award of child custody is made in a district court, the
trial judge, prior to denying a parent the right of reasonable visitation,
shall make a written finding of fact that the parent being denied visitation
rights is an unfit person to visit the child or that such visitation rights are
not in the best interest of the child.
(j)
Custody and Visitation Rights of Grandparents.--In any action in which the
custody of a minor child has been determined, upon a motion in the cause and a showing
of changed circumstances pursuant to G.S. 50-13.7, the grandparents of the child are
entitled to such custody or visitation rights as the court, in its discretion,
deems appropriate. As used in this subsection, “grandparent” includes a
biological grandparent of a child adopted by a stepparent or a relative of the
child where a substantial relationship exists between the grandparent and the
child. Under no circumstances shall a biological grandparent of a child adopted
by adoptive parents, neither of whom is related to the child and where parental
rights of both biological parents have been terminated, be entitled to
visitation rights.
|
