Legal Question in Family Law in North Carolina

overturning permanent child custody order

The mother is attempting to overturn a 2 week old permanent custody order stating she never got the calendar request in the mail for the hearing. We have already put the child in school, daycare, made doctor appt and added the child to our medicaid with the other children in 5 days time of physically getting the child. The mother moved to another county and took the child without notifying the father. She is using her move to say she was not aware of a hearing that was scheduled even though the 2 parents have been to mediation and through an attorney for attempts at consent orders since May 2008. Now the mother is trying to use NC general statutes 59 and 60 to get the permanent ruling thrown out of court. What are the chances of the father retaining custody of the child which he has only had since January 22, 2009? She would not sign any agreements through mediation or an attorney. What options or defense options do I have to keep the current order?


Asked on 1/31/09, 5:59 pm

1 Answer from Attorneys
Mark Williams Rice Law, PLLC - Web Based & Downtown Office

Re: overturning permanent child custody order

I assume you are representing yourself since you are posting this question to Lawguru.

First, it is not statutes 59 and 60 but more likely N.C. Gen. Stat. 1A-1, Rule 59 and Rule 60.

See http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-1,_Rule_59.html for Rule 59.

Note that a Motion under Rule 59 has to be served within 10 days of the judgment. There may be procedural reasons to bar the hearing of her motion. Also, a movant under Rule 59 has a "high bar" to win. My experience is judges don't like Rule 59/60 motions.

One question: If she represented herself, she has a duty to notify the Court of any change in address. Did she notify? Her failure to do could, arguably, not be adequate justification for a new trial.

See http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-1,_Rule_60.html for the details of Rule 60.

Under Rule 60, she has more time but a higher burden of proof.

You worked too hard to get your order to chance it being changed....

My advice is to hire an NC Attorney to go to the hearing with you and represent you. If you can't afford that, at least consider hiring an attorney to prepare a Responsive Motion and possibly, a Memorandum of Law. Depending on the mother's motion, the issue may come down to "excusable neglect."

If you decide not to hire an attorney locally, we would be willing to help you with the required paperwork and pleadings. Starting next week (Wed), we will have a Virtual Law Office via our website at www.ricefamilylaw.com

However, we have been "unbundling" services for sometime and routinely help folks throughout North Carolina.

Best wishes,

~Mark

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Answered on 1/31/09, 6:12 pm


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