7.1.Time Limits. The time limits for disposition of temporary and permanent child custody claims are set forth in Rule 1.7 above. 7.2. Definitions. As used herein, "custody'' or "child custody'' includes custody, visitation, or other parenting issues, but does not include child support.7.3.Participation in AOC Mandatory Custody Mediation. Consistent with N.C. Gen. Stat. § 50-13.1(b), the parties to any contested custody case filed in this District shall participate in the mandatory mediation of their custody dispute in accordance with these Rules and the governing statutes. Unless waived by an Order of the Court pursuant to these Rules, mediation shall be required for all determinations involving an issue related to child custody, including modifications of custody. Participation in the mandatory custody mediation shall be concluded prior to the hearing on the issues of temporary or, if no temporary custody is sought, prior to the hearing on permanent custody and visitation, unless waived by the Court pursuant to these Rules or governing statute. Nothing herein shall restrict the calendaring of hearings to occur after mediation, and Notices of Hearing may be filed prior to the conclusion of mediation so long as set for a date after the conclusion of the mediation. Ex parte custody, temporary custody incident to an Order for Domestic Violence, and emergency custody shall not be subject to this Rule.
If the parties have attended a mediation orientation within the preceding two (2) years, they shall not be required to attend and repeat the orientation session and shall instead be ordered to attend their individual case mediation session(s) only.
The mandatory mediation shall be accomplished 1) through the AOC Custody Mediation Office in Pitt County (CMO) or 2) through private mediation by a North Carolina certified family mediator. If the parties mutually elect to use private mediation, the election shall be made in writing prior to the scheduled Custody Mediation Orientation set forth below in these Rules, shall contain the name of the mediator, and shall be filed with the Clerk in the case file, with a copy provided to FCO. If the parties mutually agree to private mediation but cannot agree to a mediator, the Family Court/FCO shall appoint a North Carolina certified mediator. The private mediator, whether appointed or chosen by the parties, shall comply with the reporting and timeline requirements of this Rule.
7.4.Calendaring, Scheduling, and Participation for Mediation. The FCO shall schedule all custody issues, including initial determinations of custody and modifications of custody, for Custody Mediation Orientation to occur within the time period set forth in Rule 1.7 above. The filing or moving party and/or counsel shall be responsible for informing FCO of the custody claim within five (5) days of its filing and shall provide a copy of the pleading or Motion and the proofs of service concerning the custody claim. Following receipt of the claim and service documents, FCO shall prepare and serve the parties or their counsel with an Order to Attend Custody Mediation (Form #5, See attached Appendix of Forms) scheduling the Custody Mediation Orientation. The assigned Judge shall enter the Order for mediation. FCO shall provide a copy of the Order to the CMO or any assigned private mediator. The filing/moving party is required to ensure that the mediation has been ordered and scheduled. A date for Custody Mediation shall be assigned in all custody cases unless mediation is waived by Order of the Court pursuant to these Rules. Mediation shall be scheduled to conclude within and in consideration of the time limits set forth in Rule 1.7 above. Individual mediation sessions will be scheduled by the Custody Mediator either at the time of the parties' initial mediation orientation session, or if such orientation is not required, then at the time the orientation session was determined to be unnecessary. A privately selected certified mediator shall likewise schedule mediation within the prescribed time limits. Unless excused by an Order of the Court, the parties to a custody case, including cases involving contempt related to custody, must attend and participate in the mediation sessions as scheduled and ordered.
The CMO mediation includes a general orientation session, a one (1) hour parent education session, and at least one (1) mediation session to fulfill the Court's Order to Attend Mediation, whether through private mediation or with the CMO. Any party who fails to attend and participate in the orientation or mediation as ordered shall be subject to the contempt powers of the Court.
7.5.Waiving the Custody Mediation Process. In some instances, and for good cause, mediation may be waived on motion of either party or on the Court's own motion, and pursuant to N.C. Gen. Stat. §,50-13.1(c) (Form AOC-CV-632). "Good cause'' may include, but is not limited to, the following: a showing of undue hardship to a party, travel distances, an agreement between the parties for voluntary mediation subject to court approval, allegations of abuse or neglect of minor child, allegations of alcoholism, drug abuse, or domestic violence, or allegations of severe psychological, psychiatric, or emotional problems. A showing by either party that the party resides more than 100 miles from the Court may be considered good cause, although remote mediation can be accomplished through technology and will not automatically result in good cause. The appointment of a parenting coordinator shall be "good cause'' to exempt the parties from custody mediation. Parties desiring an Order waiving mediation shall complete, file, and serve a Motion to Waive Custody Mediation (Form AOC-CV-632) and provide a copy to FCO at least ten (10) days prior to the date of the scheduled orientation. If there is a current domestic violence protection order in effect between the parties, a copy shall be attached to the Motion to Waive Custody Mediation. The opposing party or counsel shall file a response if they object to the Motion to Waive Custody Mediation, within five (5) days of service and/or receipt of the Motion, whichever is later. The FCO shall submit the Motion and any response to the Court. The Court may, in its discretion, require a hearing or grant or deny the motion ex parte without a hearing. A Motion and Order to Waive Custody Mediation shall not be required if prior to the scheduled custody mediation orientation sessions, the parties submit a Consent Order resolving all pending custody issues.
7.6.Outcomes of Mediation. If the parties are able to reach a full resolution of the contested issues as to custody and/or motions for contempt relating to custody, then as soon as is practicable, the CMO shall prepare a draft of the terms of resolution in writing. The CMO shall distribute copies of the draft to all parties and their attorneys, advising the parties to review the agreement with their attorneys if they are represented by counsel. A deadline shall be established for the parties to return to the CMO to execute the finalized written agreement if they voluntarily agree to do so. Final signed agreements executed by all parties and, if applicable, their counsel of record shall be presented to the Court. The Court shall then enter each agreement as a Court Order, and it shall become enforceable as a Court Order, by means of the Order Approving Parenting Agreement. Family Court Staff shall file the Order Approving Parenting Agreement with the Clerk of Superior Court and serve copies to the parties and/or counsel. The CMO shall also advise the FCO in writing that an Order Approving Parenting Agreement has been entered. If the parties resolve the custody issue in a private mediation, the mediated settlement agreement shall be submitted to FCO for entry as a Court Order or counsel shall submit a formal Consent Order in accord with the Rules governing private mediation practices. The private mediator shall establish deadlines for the finalization of the agreement or Consent Order and its submission to FCO for entry by the Court. In the event of a settlement of the custody issue in private mediation, the private mediator shall advise FCO in writing of the settlement. If an agreement resulting from mediation is incorporated into an Order Approving Parenting Agreement, or some similar name, it shall nonetheless be deemed to be a Custody Order or child custody determination for the statutory purposes set forth in N.C. Gen. Stat. § 50-13.1(h). If the parties reach a partial resolution of the contested issues as to custody and/or motions for contempt relating to custody, as soon as practicable, the CMO or private mediator shall prepare, circulate, and/or establish deadlines and responsibilities for the execution of the partial agreement. Any unresolved issues remaining for determination by the Court shall be identified and reported to FCO for purposes of scheduling or confirming the prior scheduling of necessary hearings consistent with these Rules.
If some or all of the issues as to custody are not resolved by mediation, or if either party fails to execute the documents incident to the mediated settlement within fourteen (14) days of receiving the documents, counsel or the CMO or the private mediator shall report the failure to FCO as an impasse, and the matter shall be scheduled for hearing as set forth in these Rules.
7.7.Inadmissibility of Mediation Communications. Mediation shall be held in private and shall be confidential. Except as provided herein, all verbal or written communications made within or during the mediation process shall be privileged and shall be inadmissible in court. Neither the mediator nor any party or other person involved in mediation under these rules shall be called to testify as to communications made during or in furtherance of such mediation sessions. However, there shall be no privilege or confidentiality as to communications or conduct made in furtherance of or constituting a crime or fraud.7.8. Ex Parte and Emergency Filings. See Rules 2.4 and 2.5 above which govern ex parte matters.7.9. Temporary Custody Hearings. The time limits for disposition of temporary child custody claims are set forth in Rule 1.7 above. Upon the request of either party, the FCO will schedule a temporary custody hearing. The moving party/counsel shall serve upon the opposing party or counsel the pleading or Motion with the temporary child custody claim, and the Notice of Hearing (Form #2. See attached Appendix of Forms) as scheduled for the hearing date. Unless otherwise ordered by the Court for good cause shown and pursuant to these Rules, temporary custody hearings shall be limited to three (3) hours, including direct examinations, cross-examinations, admission of documents, opening statements and closing arguments. The Court shall have discretion to address time issues concerning the hearing. Each party shall be allocated one-half ('A) of the total hearing time, and the courtroom Clerk shall keep the time allotted to the respective parties.
Any Order entered in a temporary custody hearing shall be without prejudice to either party at the full hearing on the merits at a later date, unless otherwise agreed by the parties or ordered by the Court.
7.10.Permanent Custody Hearing. The time limits for disposition of permanent child custody claims are set forth in Rule 1.7 above. All permanent custody trials, whether an initial or a modification trial, will be calendared for no more than twenty-four (24) hours over four (4) days of Court time unless otherwise ordered by the Court pursuant to these Rules. Unless otherwise permitted by the Court, each party shall be allocated one-half (1/2) of the total hearing time, including direct examinations, cross-examinations, rebuttals, admission of evidence, opening statements, and closing arguments. The Court shall have the discretion to address time issues. The courtroom Clerk shall keep the time allotted for the parties, as directed by the presiding Judge. Questions about the division of time shall be addressed to the presiding Judge. Pursuant to the North Carolina Rules of Evidence, whether a permanent trial limited to four (4) days or less, or whether additional trial time is permitted upon motion of party pursuant to Rule 4 above, the Court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth, to avoid needless consumption of time and repetition of evidence, and to protect witnesses from harassment or undue embarrassment.
N.C. R. Prac. Sup. & Dist. Ct. Civ. P. 7
Adopted January 4, 2023, effective 2/1/2023.