Title: S.L. 1967-1153
Category: Introduced Bill
Keywords: Bill ?

NORTH CAROLINA GENERAL ASSEMBLY
1967 SESSION

CHAPTER 1153
SENATE BILL 107

AN ACT TO REWRITE THE STATUTES RELATING TO CUSTODY AND SUPPORT OF MINOR CHILDREN.

The General Assembly of North Carolina do enact:

Section 1.  G.S. 17-39, G.S. 17-39.1, G.S. 17-40, G.S. 50-13, and G.S. 50-16 are hereby repealed.
Sec. 2.  Chapter 50 of the General Statutes is hereby amended by inserting the following Sections:
§ 50-13.1.  Action or Proceeding for Custody of Minor Child. 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.
§ 50-13.2.  Who Entitled to Custody; Terms of Custody; Taking Child Out of State. (a) An order for custody of a minor child entered pursuant to this Section shall award the custody of such child to such person, agency, organization or institution as will, in the opinion of the judge, best promote the interest and welfare of the child.
(b)	An order for custody of a minor child may grant exclusive custody of such child to one person, agency, organization or institution, or, if clearly in the best interest of the child, provide for custody in two or more of the same, at such times and for such periods as will in the opinion of the judge best promote the interest and welfare of the child.
(c)	An order for custody of a minor child may provide for such child to be taken outside of the State, but if the order contemplates the return of the child to this State, the judge may require the person, agency, organization or institution having custody out of this State to give bond or other security conditioned upon the return of the child to this State in accordance with the order of the court.
§ 50-13.3.  Enforcement of Order for Custody. (a) The wilful disobedience of an order providing for the custody of a minor child shall be punishable as for contempt as provided by G.S. 5-8 and G.S. 5-9.
(b)	Any court of this State having jurisdiction to make an award of custody of a minor child in an action or proceeding therefor, shall have the power of injunction in such action or proceeding as provided in Article 37 of Chapter 1 of the General Statutes.
§ 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 circumstances of the case otherwise warrant, the father, the mother, or any person, agency, organization or institution standing in loco parentis shall be liable, in that order, for the support of a minor child. 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. Upon proof of such circumstances 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.
(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, and other facts of the particular case.
(d)	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 court, for the benefit of such child.
(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 or any interest therein, or a security interest in real property, as the court may order. In every case in which payment for the support of a minor child is ordered and alimony or alimony pendente lite is also ordered, the order shall separately state and identify each allowance.
(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. 1-227 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.
(5)	The remedy of injunction, as provided in Article 37 of Chapter 1 of the General Statutes, 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 actions 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 3 of Chapter 39 of the General Statutes pertaining to fraudulent conveyances.
(8)	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.
(9)	The wilful disobedience of an order for the payment of child support shall be punishable as for contempt as provided by G.S. 5-8 and G.S. 5-9.
(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 32 of Chapter 1 of the General Statutes.
(11)	The specific enumeration of remedies in this Section shall not constitute a bar to remedies otherwise available.
§ 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 herein provided. The procedure in habeas corpus proceedings for custody and support of minor children shall be as in other habeas corpus proceedings, except as herein provided. In this Section 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)	By writ of habeas corpus, and the parties may appeal from the final judgment therein as in civil actions.
(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 when:
a.	The minor child resides, has his domicile, or is physically present in this State, or
b.	When the court has personal jurisdiction of the person, agency, organization, or institution having actual care, control, and custody of the minor child.
(3)	The respective rights of persons, agencies, organizations, or institutions claiming the right to custody of a minor child may be adjudicated even though the minor child is not actually before the court.
(4)	Jurisdiction acquired under subdivisions (2) and (3) hereof shall not be divested by a change in circumstances while the action or proceeding is pending.
(5)	If at any time a court of this State having jurisdiction of an action or proceeding for the custody of a minor child finds as a fact that a court in another State has assumed jurisdiction to determine the matter, and that the best interests of the child and the parties would be served by having the matter disposed of in that jurisdiction, the court of this State may, in its discretion, refuse to exercise jurisdiction, and dismiss the action or proceeding or may retain jurisdiction and enter such orders from time to time as the interest of the child may require.
(6)	If at any time a court of this State having jurisdiction of an action or proceeding for the custody of a minor child finds as a fact that it would not be in the best interests of the child, or that it would work substantial injustice, for the action or proceeding to be tried in a court of this State, and that jurisdiction to determine the matter has not been assumed by a court in another state, the judge, on motion of any party, may enter an order to stay further proceedings in the action in this State. A moving party under this subdivision must stipulate his consent to suit in another jurisdiction found by the judge to provide a convenient, reasonable and fair place of trial. The court may retain jurisdiction of the matter for such time and upon such terms as it provides in its order.
(d)	Service of Process; Notice; Interlocutory Orders.
(1)	Service of process in civil actions or habeas corpus proceedings for the custody of minor children shall be as in other civil actions or habeas corpus proceedings. Motions for custody or support of a minor child in a pending action may be made on five days' notice to the other parties and compliance with G.S. 50-13.5(e).
(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.
(e)	Notice to Additional Persons in Custody 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 custody of such child, shall be given notice by the party raising the issue of custody.
(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 custody 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. Until a district court having jurisdiction shall have been established, actions or proceedings for custody and support of minor children shall be heard by a resident judge of superior court, a judge regularly holding the superior courts of the district in which the action or proceeding is brought, any judge holding a session of superior court, either civil or criminal, in the district including the county in which the action or proceeding is brought or a special judge of superior court residing in the district. Such action or proceeding may be heard in or out of session. If a court other than the superior court has jurisdiction over such action or proceeding, such jurisdiction shall not be affected by this subsection 50-13.5(h).
§ 50-13.6.  Counsel Fees in Actions for Custody and Support of Minor Children. In an action or proceeding for the custody or support, or both, of a minor child the court may in its discretion allow reasonable attorney's fees to a dependent spouse, as defined in G.S. 50-16.1, who has insufficient means to defray the expenses of the suit.
§ 50-13.7.  Modification of Order for Child Support or Custody. (a) An order of a court of this State for custody or support, or both, of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.
(b)	When an order for custody or support, or both, of a minor child has been entered by a court of another state, a court of this State may, upon gaining jurisdiction, and upon a showing of changed circumstances, enter a new order for support or custody which modifies or supersedes such order for custody or support.
§ 50-13.8.  Custody and Support of Person Incapable of Self-Support Upon Reaching Majority. For the purposes of custody and support, the rights of a person who is mentally or physically incapable of self-support upon reaching his majority shall be the same as a minor child for so long as he remains mentally or physically incapable of self-support.
Sec. 3.  G.S. 1-440.2, as the same appears in Volume 1A of the General Statutes is hereby amended by inserting the words "or an action for the support of a minor child," after the word "support" and before the word "but" in the fourth line thereof.
Sec. 4.  G.S. 1-410(5) is hereby amended by adding at the end thereof the following provision: "The term 'creditors' shall include, but not by way of limitation, a minor child entitled to an order for support".
Sec. 5.  All laws and clauses of laws in conflict with this Act are hereby repealed.
Sec. 6.  If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or application of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.
Sec. 7.  This Act shall be in full force and effect from and after October 1, 1967.
In the General Assembly read three times and ratified, this the 6th day of July, 1967.