The NC Court Of Appeals addressed this issue today in a matter from Lincoln County titled Ludack v Ludack.

At issue was a 38 month delay in issuing a final order from from a permanent custody hearing.  This ruling was also was approximately 5 years from the issuance of a Temporary Order.  Father argued that the 38 month delay that resulted in a Final Order not to his liking was prejudicial.

Noting that this issue was first raised on appeal, the Court stated "...[a] party should file a writ of mandamus, or employ another method of requesting the court act, in the trial court."  This puts the burden squarely on the trial lawyers which, in my opinion, is where the burden should be.  While judges have an ethical duty to timely prepare orders, trial lawyers have a similar duty to their clients and are in the best position to move a trial court to act.

Next, Father argued that the Temporary Order in the matter had become a permanent custody order by operation of law, and Mother did not present evidence of a change in circumstances permitting a modification by the trial court.  In citing Lawrence v. Lawrence, ___ N.C. App. ___, ___, 903 S.E.2d 374, 380 (2024)  the court ruled that "[a] temporary custody order may become permanent by operation of time, when neither party sets the matter for a hearing within a reasonable time."

The court then remanded the matter on this sole issue in order for the trial court to hold "...a hearing solely to determine whether the Temporary Order became permanent by operation of time, and, if so, whether Mother presented evidence of a substantial change of circumstances."

Perhaps North Carolina should adopt a rule similar to South Carolina's Administrative 365 day rule? This rule requires all Family Law cases (excepting DSS abuse and neglect matters) to be resolved within 365 of filing or the matter will be administratively dismissed without prejudice, causing the loss of all temporary orders. This rule initially seemed onerous to us, but it has been working our really well for the past 10 years.

And, once again, no objection to this delay was made at the trial court. Raise it or Waive it, counselors!!

Guy J. Vitetta, Esa.

Settlyd Family Law Software

Charleston