A guardianship is an important legal tool that allows the Clerk of Superior Court to appoint one person or entity to make decisions on behalf of an incompetent adult (the ward).  Guardians are typically appointed in instances of incapacity or disability. Say for example, an individual suffers a tragic accident and is placed in a medically induced coma to sustain further injuries. For the individual to have their personal wishes fulfilled while in a coma, the person must have a durable power of attorney and medical directives already in place prior to the accident. If the individual does not have those documents already in place, the court will appoint a guardian to make both financial and personal decisions for the comatose patient.

Types of Guardianships
North Carolina has three different types of guardianships: guardian of the person, guardian of the estate, and general guardian. Each of these guardianships have different stipulations that limit the guardian’s decision making power. The guardian of the person makes decisions about the ward’s personal care and well-being, such as housing and medical decisions. However, a guardian of the person is prohibited from handing the ward’s money. The guardian of the estate is only allowed to handle the ward’s finances and cannot make decisions about the ward’s personal care and well-being. Finally, a general guardian does not have the same limitations as the previously mentioned guardianships. General guardians have the power to make personal decisions for and handle the finances of the ward.

Deeming Someone Incompetent
There is a process to deeming an adult incompetent. First, a petition must be filed seeking to have someone declared incompetent. The person in question is entitled to a jury trial or the matter will be heard before the Clerk of Superior Court. Usually, there must be medical or psychological evidence to assist the jury or Clerk in deciding whether or not the person no longer has the ability to make decisions or care for himself.
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Becoming a Guardian
Obtaining guardianship is also a process. Courts make their decisions based on the expressed wishes of the ward. In the event the ward is not able to express his or her wishes, the court will make a decision based on pre-incapacity documents (power of attorney or will).   There are requirements that a person must meet in order to be considered by the courts for guardianship. In order to be considered for guardianship an individual must be qualified to serve and be a legal adult with no felonies or gross misdemeanor record implicating dishonesty (bribery, forgery, etc.).

Upon the court deeming that a person is qualified to act as a guardian, it is important that an individual seeks out a qualified family attorney. The attorney can execute a durable power of attorney and a duly probated will. Finally, the last step is to seek out the proper forms to fill out to obtain guardianship. 

Most people often associate being convicted of a crime with spending time in jail. Although incarceration is a serious matter, it is only one of the numerous potential consequences that a conviction can have on a person’s life. A criminal record can limit employment and housing opportunities, tear apart families, and block a plethora of other benefits essential to being a productive member of society.

What is an expunction and what does it do?
North Carolina defines expunction as the destruction of a criminal record by court order. The main purpose of an expunction (also known as an expungement) is to restore the individual in the view of the law to the status that he or she occupied prior to the existence of a criminal record. An expunction allows the individual (with rare exception) to deny or refuse to acknowledge a criminal incident has occurred without committing perjury or being deceitful. The primary exception is for purposes of federal immigration.

What makes a person eligible?
Contrary to popular belief, opportunities to expunge a record in North Carolina are exceedingly rare. Generally, expunctions are reserved for first time nonviolent offenses committed more than fifteen years ago, first time offenses committed at the age of eighteen or twenty-two, or a charge that was dismissed or disposed not guilty.
Determining an individual’s eligibility for expunction of a conviction or charge in North Carolina often requires the utilization of two tools.

• Decision tree: This is a chart that separates each charge and ask a series of questions based on the charge. If there are multiple charges, each one is placed on the chart separately. The decision tree is split into two halves, on the left is if the person in question was disposed guilty of a crime and on the right is if the person is disposed not guilty or charges were dismissed. There are subsequent questions that follow each of the two headings (guilty or not guilty/charges dismissed).
• Automated Criminal Infraction System (ACIS): Accessing an individual’s eligibility for expunction of a conviction or charge often requires a review of the individual’s entire criminal record. However, it is common practice for attorneys to rely on an individual’s local Automated Criminal Infraction System criminal report because it is typically the most accessible criminal record report. A local ACIS report will only show the parts of an individual’s criminal record that occurred in the county where the report was created. This is problematic because it is not uncommon for an individual to have a conviction arising from a criminal incident in a different county that may affect the individual’s eligibility for an expunction.

Types of Expunctions
Currently, North Carolina has twelve expunction types and statues. Each statue has different criteria that makes an individual eligible to apply for that expunction. Most statues have an age stipulation that requires the individual to have been under the age of either eighteen or twenty-two at the time of the alleged criminal incident. An example of this, is the expungement for Misdemeanor Possession of Alcohol (Under twenty-one). The criteria for this expungement as laid out by its accompanying statue, is that the individual must wait two years from the conviction or completion of probation to apply for an expunction. Any misdemeanor or felony convictions during the two years after the alcohol conviction make the individual ineligible for expungement.

Some offenses are harder to remove from an individual’s record than others. In North Carolina, DWI offenses are an example of such an offense. The rationale behind this is because the victims of drunk driving cannot forget the pain that they suffered from DWI therefore, North Carolina ensures that drunk drivers have a hard time erasing the memory of their crime.

Process for Expunction in North Carolina
In North Carolina, there is a six step process for petitioning for Expunction of a criminal record. The six steps are listed below:

1. The attorney must obtain an accurate and complete copy of the petitioner’s criminal record
2. Upon obtaining the petitioner’s criminal record, there is a determination of the petitioner’s eligibility for an expunction
3. The attorney will then identify and obtain the corresponding petition form. After obtaining the relevant petition form, the forms will be filled out and completed along with any required supporting documents
4.  The next step is to identify any county-specific procedures for submission and petition.
5. After the identification of county-specific procedures, there must be a determination of the procedures for review of petition.
6. Finally, there is a verification of an expunction order.

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Each case is unique, however, the expunction process normally takes about six to nine months to complete. 

Commonality of Modifying Alimony
After a court grants alimony (either temporary or permanent), it may later be modified by the court or terminated completely depending on the circumstance. There must be a substantial change in circumstances in order for court to modify an existing agreement. Courts have wide discretion in how they define situations that constitute a substantial change in circumstances to warrant a change in alimony. It is not common for a court to modify an existing alimony award. North Carolina submits to the partnership theory of marriage, where both partners have an equal obligation to provide financial support to each other during marriage. This theory extends to post-separation spousal support.

Spousal Support: Payor and Recipient
During the process of modifying alimony agreements, an individual is either the payor or the recipient of spousal support.  These roles are determined objectively depending on which partner was financially superior in the marriage. The payor is typically the partner who will be giving money to the recipient or dependent partner. The amount of spousal support depends specific factors, such factors include: the duration of the marriage, the role of each spouse, and the age of the partners.

Modification of Spousal Support
Either party has the ability to initiate modification of an award. The party who moves for a modification of alimony has the responsibility of showing a substantial change in circumstances that warrant change in spousal support. Typically, the party will either move for either upward modification or downward modification.

• Upward modification: The recipient (or dependent) can petition for upward modification by presenting evidence to show a significant change in circumstances. Generally, such circumstances include, a loss of employment, disability or illness, and financial crises. Additionally, if the payor experiences a significant increase in financial fortunes, the recipient has grounds to apply for upward modification of spousal support. Either party is allowed to cite increased in cost of living expenses to increase spousal support or decrease spousal support obligations.

 

• Downward modification: The payor has the right to move for a downward modification of spousal support if the recipient has new employment with increased income or if the recipient is engaging in cohabitation with a third party.  In this scenario, the responsibility now rest with the recipient to prove that the change in circumstance has not affected the need for spousal support. In most cases, remarriage of the recipient terminates the spousal support obligations, unless there are compelling reasons to prove otherwise.

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• Often, the reason for the payor to move for a downward modification stems from a loss of employment, disability or illness, unanticipated financial adversity or new support obligations such as a new spouse and children with the new spouse. 

Decreased marriage rates, rising divorce rates, and a growing incidence of unmarried cohabitation have combined to create and increasingly common situation: unmarried cohabitation between a dependent spouse and a third party. The question is, what effect should this cohabitation have on a supporting spouse’s continued duty to pay alimony to the dependent spouse? This article explores the legislation that is used in North Carolina and conditions that modify and terminate alimony payments.

Modified Legislation in North Carolina
For the past thirty years, North Carolina’s alimony has been “fault based”. A dependent spouse was entitled to receive alimony only if the spouse was able to provide substantial evidence to show that the supporting spouse had committed one of several “matrimonial offenses”. As of October 1, 1995, a dependent spouse’s obligation to prove “marital fault” as a condition of alimony has been eliminated. The rationale for financially punishing the spouse that caused the destruction of the marriage has lost its credibility. Thus the change was made toward a balancing of economics and less of a focus on fault finding.

Remarriage
Each state proposes a different legislative solution to termination or modification of alimony payments.  In North Carolina, remarriage of a dependent spouse will terminate court-ordered alimony. This statue applies to divorces both prior to and after October, 1995. However, it is important to acknowledge that remarriage only terminates future alimony payments, it does not excuse any overdue payments from before the remarriage. In the event that support payments are subject to a separation agreement between parties that is not stated in a court order, then the terms of the agreement apply. An agreement of this nature, may or may not include a clause that terminates support upon remarriage. If the agreements is stated in a court order, then it is modifiable by the court and the support obligation may be terminated on remarriage.

Cohabitation
According to the October statue, when a dependent spouse engages in cohabitation, post-separation support and alimony will usually be terminated. More specifically, alimony terminates when cohabitation has an economic impact on the dependent spouse.
The legal definition of cohabitation is, the “continuous and habitual living together with evidence of the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people”. A North Carolina court of appeals found that cohabitation existed when a couple had been in a monogamous relationship for ten months and slept in the same dwelling for up to five times per week. In a rare case the court found that cohabitation existed when the parties maintained separate dwellings (did not spend nights together) but kept personal belongings at their significant other’s home.  The more rights, duties, and obligations associated with cohabitation, the more likely it is to have an economic impact on the dependent former spouse. It is also more likely that it will appear that the dependent former spouse is acting in bad faith by avoiding the formalities of marriage primarily to continue receiving alimony.

There are several factors to consider when determining if a couple is cohabitating or not. Some of these factors include:

• Whether or not the couple share household chores and child care duties.
• Whether or not the couple involved has co-mingled their finances.
• How the couple holds themselves in public and whether or not they attend worship services together.

Much like there are factors to support cohabitation, there are factors that are not enough to support a finding of cohabitation. Such factors include:

• Parking in the dependent party’s garage.
• Walking the dependent party’s dog.
• Moving furniture into the party’s home.
• Spending eleven consecutive nights together

Situational Factors of Cohabitation
There are situational factors to consider when determining whether or not a couple is engaging in cohabitation. The first of these is monogamy. Sexual intercourse between the dependent spouse and the new partner is not required for there to be a cohabitation that will terminate alimony. Secondly, it is important to examine the relationship between the dependent spouse and the person that they are living with. For example, although living with roommates and family members can reduce the dependent party’s expenses it is not considered cohabitation. However, living with a roommate or a family member can have an impact on the amount of the support. Finally, is unlike marriage cohabitation does not have a definite start date. Lately, courts have dated the cohabitation to the date that one party brings a motion to terminate support. 

Questions about child custody and visitation are frequent during and after divorce, and when establishing paternity. In some cases, due to changed conditions or events, or the need of one parent to move, orders relating to child custody or visitation may need to be modified. Careful wording is needed for a strong and fair revision to a preexisting order. In North Carolina, there are specific situations that allow for the modification of a child custody order. 

Requirements for Modification of a Child Custody Order
For a child custody order to be modified there must be a custody order already set in place. A separation agreement that has not been incorporated does not meet the requirements of a court order. A parenting agreement or a consent order that has been signed by a judge and the parents (or legal guardian) constitutes as a court order. Likewise, an order that has been registered to allow modifications is also an order that can be modified.

Legal Standard
The legal standard in North Carolina is the best interest standard - what is in the best interests of the minor child. As the name implies, the best interest standard places the child’s welfare above all else by allowing the court to make a decision in the child’s best interest. Additionally, if a judge hears a child custody case where there is no order in place or there is only a temporary order, this legal standard is utilized.

The best interest standard is only considered when there has been sufficient evidence to prove that there has been substantial change affecting the child. The district court judge must find substantial change of circumstances prior to changing an existing order. The party seeking modification has the burden of showing changed circumstances. Even though the party seeking modification has the obligation to provide the court with any pertinent evidence relating to the best interest standard, the trial court has the ultimate responsibility of requiring production of any evidence that may be competent and relevant to the issue. Therefore, the best interest standard is more inquisitorial in nature than adversarial.

There is no statute of limitation that limits the amount of time that must pass before a motion to modify may be filed as long as the person filing the motion can meet their burden and prove a substantial change of circumstances.

Basic Rules for Modification
It is impossible to construct an exhaustive list of circumstances that the court considers in order to modify a child custody order. However, below are a list of basic rules that courts follow in order to make their determination:

• The change in circumstances must be substantial.

 

• The district court judge must make the distinction between changes that have a salutary effect on the child verses those that have adverse effects on the child.

 

• Circumstantial evidence that suggest that a substantial change may occur sometime in the future is inadmissible and will not support a change in custody.

 

• The evidence that is present must demonstrate a connection between the substantial change in circumstances and the welfare of the child. 

If you need to speak with a child custody / family law attorney, contact Adkins Law. We are located in Huntersville NC and primarily serve Mecklenburg County and the Lake Norman area. 

There are a multitude of things that one can do in order to maximize their chances of having more custody over their child/children. Documentation is key. The best thing you can do in this scenario is to document everything that takes place between you, your child/children, and the other parent.
 
When discussing child custody, the first thing a judge is going to take notice to is the relationship between each parent and the child. Get involved! Create a stable environment for your child, help your child in school, and get involved in your child’s after school activities. Become the most important actor in your child’s life. The best way to better your chances at getting your ideal custody order is to prove that you are a benefit to your child’s development and well-being.
 
The State of North Carolina has abolished any bias over either the mother or the father. The courts must keep in mind the best interest of the child in order to determine a custody arrangement. This being said, it is never too late to create a special bond between you and your child/children. It is never too late to step up to the plate and be the responsible parent that your child needs in order to continue to develop and learn.
 
If you need to speak with a divorce / separation / family law attorney, contact Adkins Law. Adkins Law is located in Huntersville NC and primarily serves Mecklenburg County, Charlotte, and the Lake Norman area. 

Assault and battery are intentional torts that are often used interchangeably as if they are one single course of action. While it is true that assault and battery often occur together, they are two different torts with their own common law requirements.

Assault
An assault occurs when there is a willful attempt or willful threat made by the defendant to inflict injury upon the plaintiff or a third party. The common law elements of an assault include: an unlawful attempt, with the present ability, to commit a battery.  Bodily injury does not have to occur in order for there to be an assault. Assault is simply the infliction of imminent fear on the plaintiff, where the defendant is physically capable of harming the plaintiff or third party.

• Unlawful attempt: The key distinguishable element between assault and battery is in order for there to be a valid assault no actual contact needs to occur. If a defendant points a knife at the plaintiff and the plaintiff believes that the defendant might actually stab him or her, an assault has occurred. It is irrelevant whether the defendant actually stabs the plaintiff or not.
• With present ability: Words alone are not enough to constitute an assault. If a defendant threatens to beat up the plaintiff during a telephone conversation, this does not rise to the level of an assault for two reasons. The first reason is that the defendant’s words are not accompanied by any physical action. The defendant did not inflict imminent fear on the plaintiff and therefore, it is not reasonable for the plaintiff to believe that actual harm will occur. The second reason is that the threat was made over a telephone conversation. Even if the defendant wanted to beat the plaintiff up, the defendant is not physically capable of doing so.
• Intent to commit battery: In order for an action to rise to the level of an assault, the defendant must intend to come in harmful or offensive contact with the plaintiff. If the defendant simply gives the impression of causing bodily injury but does not have the intent to carry out the action, no assault has occurred. For example, if a defendant trips over something giving a nearby plaintiff the impression that he is attempting to strike, there is no assault because the defendant did not intend any contact. The defendant’s actions were accidental. In this scenario, the plaintiff would not have enough situational evidence to substantiate a claim for assault.
• Moreover, there is no assault unless the plaintiff is in imminent fear of harmful contact. In the event that the plaintiff is unaware that he defendant is about to make contact with him, no assault has occurred. In the case where a defendant attempts to sneak up behind a plaintiff and raises a fist with the intent to strike, no assault has occurred because the plaintiff is unaware of the imminent contact.

 
Battery
A battery has occurred when a defendant willfully and unlawfully uses forceful violence or makes offensive contact with a plaintiff or a third party. The common law elements of battery include: the causing of bodily injury, offensive touching, and the intentional causing of harm to another person.

• In order for a battery to occur, the defendant is not required to make direct contact with the intended plaintiff. Transferred intent and constructive touching are two key ways for a defendant to commit battery without physically touching the plaintiff or third party. Transferred intent is the unintended act that results from an intentional act. If in the middle of a heated argument with his girlfriend, a boyfriend intends to hit his girlfriend but instead hits the two year old son in her arms, the boyfriend in this scenario has committed battery. Constructive touching is touching that is inferred or implied from prevailing circumstances. For instance, if a defendant hits a car with his fist that the plaintiff is riding in, one can infer that the defendant in this case is attempting to harm the plaintiff. Therefore the action of the defendant hitting the vehicle that the plaintiff is riding in is considered battery. 

Although battery is a specific intent crime, the defendant does not have the authority to determine whether or not their actions are considered a battery. In other words, it is irrelevant whether or not the defendant considered his actions to be harmful or offensive. Even if the defendant hits the plaintiff as part of a practical joke that the defendant considers to be harmless, a battery has nonetheless occurred if the court considers the contact to have been harmful or offensive.

Consent
Consent is often used as a common defense to battery. Plaintiffs who consent to batteries prior to their occurrence, have a lesser chance of their accusations prevailing in court. The plaintiff’s consent to battery must be given without coercion. In addition to freely given consent, the law assumes that people give implied consent to ordinary and customary batteries that occur commonly throughout everyday life. For instance, a plaintiff who attempts to sue a defendant for battery after the defendant bumps into him in a crowded facility would have little chance of winning the suit. In this case, the court will hold that the plaintiff gave implied consent for the battery to occur. 

North Carolina is actually both, a No Fault and an At Fault state for divorce. Depending on the circumstances you are facing at the time, you may file for either. Each of these types of divorces, however, has essential legal requirements. In order to find out which type of divorce best suits your needs, it is best that you speak with a family lawyer to get more information. 

When filing for a divorce in North Carolina, there does not have to be any particular reason for doing so. These types of divorces are most commonly known to contain irreconcilable differences. Although there is no specific reason to your divorce under these laws, you must remain separated for one year before filing for a divorce and at least one of you has to have resided in North Carolina for at least six months prior to filing. 

In North Carolina, being separated consists of you and your spouse living in two different residences, with no intent of reconciling. You do not need any legal documentation proving that you and your spouse were, in fact, separated for an entire year. All that is required as proof is the date that you separated. If you do reconcile your differences at any point during that period of separation, you must restart the clock if you separate. 

If you need to speak to a divorce attorney, contact Adkins Law. We are located in Huntersville and primarily serve Mecklenburg County and the Lake Norman area. 

An arrest affects an individual’s life in more ways than one may realize. Common concerns associated with being arrested include: how to pay bills in while in jail, how to care for apartments or houses, and what happens to pets while incarcerated. The third issue can be especially challenging, as many police departments do not have specific protocol in place for dealing with animals of incarcerated people. If you are arrested with your pet present and placed in jail, here is what you can expect to happen to your pet.

What happens when your pet is present during an arrest?
If a person is pulled over and arrested for any reason (i.e. for driving while intoxicated), and his or her dog is also in the car, this situation becomes a complicated problem. The police officer who pulled the person over, has ultimate discretionary power to decide what the best option is. Most departments do not have specific policies set in place for dealing with this type of situation. There are two key factors that will likely influence the arresting officer’s decision.

• Communication and cooperation: It is chiefly important to remember that a pet is ultimately the owner’s responsibility. Therefore, if an individual is arrested and subsequently taken to jail with their pet present, it is the arrestee’s responsibility to communicate any concerns that they may have about their pet. The actions that the officer chooses to take may also be influenced by the cooperation of the pet and the arrestee. If the arrestee is compliant and cognizant, the officer may be more willing to assist the individual in finding care for their pet. This may include calling a family member or friend to come and pick up the pet. If the animal is well behaved and contained and not presenting a threat to the officer, then the officer may be more willing to help the arrestee seek accommodations for their animal.

• Going up the chain of command: The arresting officer in this scenario will likely contact their supervisors for help. Supervisors will simply recommend what they think is the officer’s best course of action. In larger cities, the supervisor might call their department’s animal task force to come and handle the pet.

Taking care of pets during arrest period
An arrest can be a confusing process. Several individuals find it challenging to understand what is happening and consider this time to be a stressful and surreal blur. Despite all of the confusion that is associated with being processed and incarcerated, seeking accommodations for ones pet is an important issue to keep track of.
Most officers prefer to be informed of the situation as early as possible so that the issue can be safely addressed. If notified early enough, police officers can sign over the pet to a custodian of the arrestee’s choosing or the department may request that the arrestee sign the pet over to officials until the animal’s care can be determined. In the event that the pet is signed over to official, the animal may be temporarily boarded at a local shelter.
 
Returning home after an arrest
Returning home, even from temporary incarceration, can lead to several consequences. Unfortunately, it is not uncommon for an individual to return home upon making bail to discover that their pet is missing. The local government may attempt to intervene and ensure that animals are fed and cared for, however, making sure that this happens is usually complicated and confusing. Without properly addressing the situation, the animal can go hungry, be hurt, or simply wander off. If the police handle the situation without an individual’s cooperation, the dog will likely be held in a municipal shelter where he or she will eventually be eligible for adoption if the owner fails to intervene.